In the aftershock of September 11 2001, there is a greater awareness among most Americans of how precious their freedom is. They also realise the need for better government intelligence work to fight terrorism. But they should not let the government usurp basic liberties.

This is a danger as more and more anti-terrorist laws and rules strait-jacket the nation. There is a congruent danger: the rise of neo-conservatism on the right. The movement is using the threat of terrorism to expand government at home and abroad. America must safeguard its freedoms in the fight against terrorism, but protect itself from pernicious policies that erode freedom in the name of liberty.

Since September 11, Congress and the Justice Department have implemented laws and rules to protect America. But some of these new steps threaten civil liberties. One example is the Patriot Act. This 131-page law, which few legislators read, abandons procedural norms and expands the power of the executive branch, which is already too powerful.

Under no circumstances should an American be held captive in the US indefinitely, with no charges filed and no legal representation afforded. Yet this has happened under the Patriot Act. And now there is talk of a Patriot II. James Buchanan, the Nobel laureate, argues that governments will acquire more power when the opportunity arises. History shows this to be true, and the Patriot law reflects it. Today, with the war on terrorism, the opportunities for the state to expand are ubiquitous. Both liberals and conservatives are turning a blind eye to unnecessary usurpations of power, if not openly calling for them.

Alan Dershowitz, the Harvard law professor, has mooted the idea of "torture warrants", by which courts could authorise the use of torture to elicit information. The neo-conservative agenda is a particular threat to liberty - perhaps greater than the ideologically spent ideas of left-liberalism. Always a movement of bright intellectual leaders, neo-conservatism has mostly been a movement with a head but no body. One rarely runs into a neo-con on the street.

Underlying neo-conservatism is a desire to reshape America and the world through the efforts of a robust federal government. For years The Weekly Standard, the neo-conservative magazine, has pushed for initiatives to reinforce US international power. Merely living in a free society appears to be insufficient for neo-conservatives.

During George W. Bush's campaign for president, the neo-conservative influence was felt in domestic policy ideas such as faith-based initiatives that would involve the federal government in private local charities, often with a religious orientation. It was also seen in the call for a greater federal role in local education. These are both inconsistent with the concepts of limited government and federalism.

But neo-cons tend to be dismissive of the idea that the federal government should be limited to the protection of an individual's right to life, liberty and the pursuit of happiness. As William Kristol, editor of the Standard, has put it: "Are we willing to say that the country is worse off because of FDR or JFK or LBJ? I'm not willing to say that." So much for limited government.

During his campaign, Mr Bush said many sensible things about foreign policy, including the need for the US to have "humility" in its relations with other nations. But since September 11, neo-conservative influence on US foreign policy has reached new heights. We have grave concerns over the doctrine of preventive war and the seeming abdication of the responsibilities of Congress with respect to committing lives and treasure to armed conflict.

Some in the neo-conservative movement have openly called for an American empire around the globe. Max Boot, the writer, recently praised what he termed America's "imperialism" and said it should impose its views "at gunpoint". James Woolsey, former director of the Central Intelligence Agency, has called for a decades-long campaign to reorder the entire Middle East along neo-conservative lines. Such thinking is profoundly un-American.

All is not gloom. What is needed now is for limited government conservatives of the variety exemplified by President Ronald Reagan and Senator Barry Goldwater to join forces with libertarians and enlightened liberals who respect civil liberties. They should speak out in support of America's heritage of liberty.

Globalisation has been primarily an American undertaking and it has been good for the world's poor. The country's science, technology and entrepreneurship are healing the sick, cleaning the environment and making the world a better and more enjoyable place in which to live. The US is a great nation with little to apologise for. It has an enemy to defeat. The challenge is not to defeat itself.

Edward Crane is founder and president of the Cato Institute and William Niskanen is its chairman

Walking along Henrietta Street recently, by London's Covent Garden, looking for a restaurant, I found myself thinking of George Orwell. Victor Gollancz Ltd., publisher of Orwell's early work, had its offices there in 1984, when the company published my first novel, a novel of an imagined future.At the time, I felt I had lived most of my life under the looming shadow of that mythic year ? Orwell having found his title by inverting the final digits of the year of his book's completion. It seemed very strange to actually be alive in 1984. In retrospect, I think it has seemed stranger even than living in the 21st century.

I had a valuable secret in 1984, though, one I owed in large part to Orwell, who would have turned 100 today: I knew that the novel I had written wasn't really about the future, just as "1984" hadn't been about the future, but about 1948. I had relatively little anxiety about eventually finding myself in a society of the sort Orwell imagined. I had other fish to fry, in terms of history and anxiety, and indeed I still do.

Today, on Henrietta Street, one sees the rectangular housings of closed-circuit television cameras, angled watchfully down from shop fronts. Orwell might have seen these as something out of Jeremy Bentham, the utilitarian philosopher, penal theorist and spiritual father of the panoptic project of surveillance. But for me they posed stranger possibilities, the street itself seeming to have evolved sensory apparatus in the service of some metaproject beyond any imagining of the closed-circuit system's designers.

Orwell knew the power of the press, our first mass medium, and at the BBC he'd witnessed the first electronic medium (radio) as it was brought to bear on wartime public opinion. He died before broadcast television had fully come into its own, but had he lived I doubt that anything about it would have much surprised him. The media of "1984" are broadcast technology imagined in the service of a totalitarian state, and no different from the media of Saddam Hussein's Iraq or of North Korea today ? technologically backward societies in which information is still mostly broadcast. Indeed, today, reliance on broadcasting is the very definition of a technologically backward society.

Elsewhere, driven by the acceleration of computing power and connectivity and the simultaneous development of surveillance systems and tracking technologies, we are approaching a theoretical state of absolute informational transparency, one in which "Orwellian" scrutiny is no longer a strictly hierarchical, top-down activity, but to some extent a democratized one. As individuals steadily lose degrees of privacy, so, too, do corporations and states.

Loss of traditional privacies may seem in the short term to be driven by issues of national security, but this may prove in time to have been intrinsic to the nature of ubiquitous information.

Certain goals of the American government's Total (now Terrorist) Information Awareness initiative may eventually be realized simply by the evolution of the global information system ? but not necessarily or exclusively for the benefit of the United States or any other government.

This outcome may be an inevitable result of the migration to cyberspace of everything that we do with information.Had Orwell known that computers were coming (out of Bletchley Park, oddly, a dilapidated English country house, home to the pioneering efforts of Alan Turing and other wartime code-breakers) he might have imagined a Ministry of Truth empowered by punch cards and vacuum tubes to better wring the last vestiges of freedom from the population of Oceania. But I doubt his story would have been very different. (Would East Germany's Stasi have been saved if its agents had been able to mouse away on PC's into the 90's? The system still would have been crushed. It just wouldn't have been under the weight of paper surveillance files.)

Orwell's projections come from the era of information broadcasting, and are not applicable to our own. Had Orwell been able to equip Big Brother with all the tools of artificial intelligence, he would still have been writing from an older paradigm, and the result could never have described our situation today, nor suggested where we might be heading.

That our own biggish brothers, in the name of national security, draw from ever wider and increasingly transparent fields of data may disturb us, but this is something that corporations, nongovernmental organizations and individuals do as well, with greater and greater frequency. The collection and management of information, at every level, is exponentially empowered by the global nature of the system itself, a system unfettered by national boundaries or, increasingly, government control.

It is becoming unprecedentedly difficult for anyone, anyone at all, to keep a secret.

In the age of the leak and the blog, of evidence extraction and link discovery, truths will either out or be outed, later if not sooner. This is something I would bring to the attention of every diplomat, politician and corporate leader: the future, eventually, will find you out. The future, wielding unimaginable tools of transparency, will have its way with you. In the end, you will be seen to have done that which you did.

I say "truths," however, and not "truth," as the other side of information's new ubiquity can look not so much transparent as outright crazy. Regardless of the number and power of the tools used to extract patterns from information, any sense of meaning depends on context, with interpretation coming along in support of one agenda or another. A world of informational transparency will necessarily be one of deliriously multiple viewpoints, shot through with misinformation, disinformation, conspiracy theories and a quotidian degree of madness. We may be able to see what's going on more quickly, but that doesn't mean we'll agree about it any more readily.

Orwell did the job he set out to do, did it forcefully and brilliantly, in the painstaking creation of our best-known dystopia. I've seen it said that because he chose to go there, as rigorously and fearlessly as he did, we don't have to. I like to think there's some truth in that. But the ground of history has a way of shifting the most basic of assumptions from beneath the most scrupulously imagined situations. Dystopias are no more real than utopias. None of us ever really inhabits either ? except, in the case of dystopias, in the relative and ordinarily tragic sense of life in some extremely unfortunate place.

This is not to say that Orwell failed in any way, but rather that he succeeded. "1984" remains one of the quickest and most succinct routes to the core realities of 1948. If you wish to know an era, study its most lucid nightmares. In the mirrors of our darkest fears, much will be revealed. But don't mistake those mirrors for road maps to the future, or even to the present.

We've missed the train to Oceania, and live today with stranger problems.

------------------------------------------------------------

William Gibson is author of the novels "Neuromancer" and, most recently, "Pattern Recognition."

Your Papers, Please"...How did [Americans] manage to reverse [their] thinking? When did appeals to the lessons of history become treasonous? How did philosophic principles collapse into patriotic slogans? The answers to such questions underlie explanations for the much broader phenomenon of the collapse of Western civilization itself. Our very survival -- both as individuals and as a civilization -- depends upon a radical transformation of our thinking, one that compels us to confront those silent voices within us that can so easily erupt into bloodbaths..."

Butler Shaffer

Georgetown, Texas. Like a lynch mob fueled by a fear of the unknown and a willingness to see strangers as threats to be quickly dispatched, the herd impulse has, since 9/11, become mobilized on behalf of a war against shadows. Even beyond the violent and repressive reactions of the American government, the most unsettling consequence of the WTC attacks has been the nearly total collapse of the minds of most Americans.

For the duration of the war -- which government officials tell us will go on forever! -- men and women have rationed their intelligence and allowed what they would have heretofore regarded as their "fundamental principles" to be conscripted into the service of the state.

Americans who, five years ago, were so incensed at Bill Clinton's perjured testimony that impeachment proceedings were brought, now exhibit a willingness to be lied to about matters of far greater concern than oval office shenanigans. As the Bush administration continues to pile lie upon lie, it is evident that most Americans are completely indifferent to the purposes for the attack upon Iraq. I suspect that, if Bush and his fellow war conspirators were to publicly announce that the Iraqi invasion was deigned for no other purpose than to put money into their pockets, most Americans -- led by their electronic cheerleaders on talk-radio and cable television -- would praise them for showing "ambition" and "leadership!"

America is becoming the Nazi Germany we feared in my childhood. For those who were not around during those years, you can get a flavor for the anti-tyrannical sentiments of the time by watching any number of movies depicting the Nazi police-state. The constant presence of police; the insistence upon showing "your papers" to whichever government underling demanded them; the awareness that neither your person nor home was immune from state searches or seizures; the disappearance of people into unknown prison camps; neighbors spying upon neighbors, and children betraying their parents to the state; and the domination of society by a military and bureaucratic arrogance, arbitrariness, and absolutism, were constantly chilling examples of the dangers of state power.

How did we manage to reverse our thinking? When did appeals to the lessons of history become treasonous? How did philosophic principles collapse into patriotic slogans? The answers to such questions underlie explanations for the much broader phenomenon of the collapse of Western civilization itself. This is a topic around which my articles revolve, and has been addressed by numerous historians, as well as Carl Jung, whose psychological explanations add a depth to the inquiry unmatched by others.

A preoccupation with war has long been symptomatic of the decline of societies that practice it. Wars are essentially conducted by governments against their own people -- with "others" being held up as fear-objects around which to enlist the obedience and submission of their own citizenry. Any nation in wartime is telling us what George Bush, John Ashcroft, Tom Ridge, Donald Rumsfeld, Dick Cheney, et al., are now telling us -- if we will suspend our indifference to truth long enough to observe -- namely, that society can only be held together by armed force, threats, imprisonment, and death. When coercion supplants cooperation; when the inviolability of the individual is sacrificed to some alleged collective security; and when violence is equated with "patriotism" and peace with "un-Americanism," the days of such a society are numbered.

<?<?For those who desire to understand the attraction that this violent, destructive system has for most of us, a new book, War Is a Force That Gives Us Meaning, by Chris Hedges, offers one of the most powerful critiques of the war system since Randolph Bourne. Not content to moralize against war or to call it names, Hedges analyzes the topic from an historical, psychological, and institutional perspective, drawing upon literary and mythological works to illustrate his observations. At the same time, his book is quite critical of war, not the kind of read that flag-waving, "United We Stand" jingoists will find comforting.

Hedges has been a foreign correspondent for some fifteen years for such news organizations as the Christian Science Monitor and the New York Times. You may be more familiar with him as the recent commencement speaker at Rockford College, where he was hooted, heckled, and air-horned by war-lovers in the audience. Intellectual bankruptcy is another symptom of a dying culture, wherein discomforting ideas and criticisms can only be met with the kind of unfocused, thoughtless rage that is becoming increasingly evident in radio and television programming. For the herd-oriented, a new idea can only be countered not by clear thinking, but by blasts from an air-horn!

Hedges observes that "tates at war silence their own authentic and humane culture" and, in so doing, "erode the moral fabric" of a society. He adds: "[w]ar breaks down long-established prohibitions against violence, destruction, and murder," and leads to a situation in which "the domination and brutality of the battlefield is carried into personal life." "War," he goes on, "fills our spiritual void," and helps to erase "unsettling undercurrents of alienation and dislocation" in our lives. In words that reflect the disquieting climate in which we live, Hedges observes "a growing fusion between those in the state who wage war...and those who believe they understand and can act as agents for God."

I cannot exaggerate the importance of these observations. They force us, as do the writings of Jung, Krishnamurti, and others, to confront the "dark side" forces that reside within each of us no less than they did within tyrants and their supporters in other times and places. They also compel us to reconsider our thinking. The idea of creating systems designed to threaten, coerce, and kill, and to imbue such agencies with principled legitimacy, and not expect them to lead to wars, genocides, and other tyrannical practices, expresses an innocence we can no longer afford to indulge.

Hedges reminds us of the culture of war, which "is peddled by mythmakers" throughout society, including the modern media. You can observe such mythmaking as the media struggles to find evidence of "heroism" in a "war" that is more realistically described as a campaign of brutish bullying. A truckload of soldiers take a wrong turn on a road, are captured by Iraqi forces and later released, then brought back to America as "POW heroes"; the irresponsibility of single mothers leaving their infant children at home to go fight in a war; and the Hollywood-like staging of the "rescue" of Private Lynch, who is then brought back to America as a "heroine", are among the more apparent examples of the war system playing with smoke and mirrors in an effort to convince boobus Americanus of the nobility of the cause.

While the institutionalized butchery of the war system makes it difficult for me to equate it with heroism, one does, on occasion, find individual acts of a heroic quality even in battle. My favorite candidate for this role is Warrant Officer Hugh Thompson, a helicopter pilot in the Vietnam War who came upon the scene of what we now know as the "My Lai Massacre." After becoming aware that what he was observing was not the ordinary combat of warfare, but a calculated slaughter of Vietnamese civilians by troops led by Lt. Calley, Thompson set his helicopter down between the civilians and the American troops. He then ordered his own crew to turn their machine guns on the American soldiers and, if they persisted in the slaughter, to fire on them. Thompson then took the civilians to safety and reported the incident, which led to the prosecution of Calley.

I doubt that there will be any statues of Hugh Thompson erected anywhere soon, or that he will be leading any Memorial Day parades. His actions were too heroic, for he stood up to the very excesses of butchery that Hedges informs us destroys our sense of humanity and, with it, our civilization. I would much rather have Hugh Thompson as my neighbor than I would any of the myriad of retired generals who became television network fixtures in the mythmaking to which we have become accustomed these past many months.

Our very survival -- both as individuals and as a civilization -- depends upon a radical transformation of our thinking, one that compels us to confront those silent voices within us that can so easily erupt into bloodbaths. While most of us continue to focus on the "Nazi holocaust" as the epitome of statist butchery, we must recall that the 20th century was the "holocaust century." Some 200,000,000 of our fellow human beings were slaughtered in various wars and genocides, and tens of millions more were wounded, both physically and spiritually, in ways that never heal.

Because we fear the responsibility for our actions, we have allowed ourselves to develop the mentality of slaves. Contrary to the stirring sentiments of the Declaration of Independence, we now pledge "our Lives, our Fortunes and our sacred Honor" not to one another for our mutual protection, but to the state, whose actions continue to exploit, despoil, and destroy us. The poet, Lawrence Ferlinghetti, declared: "I am waiting for the war to be fought which will make the world safe for anarchy." While I share his sentiment, it is nonetheless evident that wars only bring up from the depths of our dark side the kinds of moral flotsam and jetsam that have surfaced in Washington, D.C. In the process, they destroy those qualities of peace, liberty, spiritual centeredness, mutual respect, and sense of individual responsibility which, alone, make for the greatness of any civilization.

Modeled after a Defense Department concept thatostensibly could keep tabs on every American, apair of Massachusetts Institute of Technologystudents have created a website in which userscan "track" politicians and government officials.

The project, called Government InformationAwareness, or GIA, was developed by ChrisCsikszentmihalyi, assistant professor at the MITMedia Lab, and graduate student Ryan McKinley.

The goal was to design a site that would act as"sort of a citizen's intelligence agency,"Csikszentmihalyi told the Boston Globe.

The GIA model was inspired by a DefenseAdvanced Research Projects Agency creationknown as Total Information Awareness, or TIA,which later was renamed the TerrorismInformation Awareness system after it waslearned TIA could be used to monitor the activitiesof millions of Americans in the government'ssearch for possible terrorists.

TIA is capable of analyzing financial, medical,consumer, educational and travel data, amongother pieces of information, to formulate a patternof behavior that would match pre-determinedterrorist profiles.

"The goal of the Terrorism Information Awarenessprogram is to revolutionize the ability of theUnited States to detect, classify and identifyforeign terrorists ? and decipher their plans ? andthereby enable the U.S. to take timely action tosuccessfully preempt and defeat terrorist acts,"says a DARPA description of the program.

Congress limited the scope of the program aftercomplaints from a number of civil libertiesorganizations.

Many of those concerns were addressed in a letterto the U.S. Senate by the Association forComputing Machinery, which stated that"because of serious security, privacy, economic,and personal risks associated with thedevelopment of a vast database surveillancesystem, we recommend a rigorous, independentreview of these aspects of TIA."

"There are important steps that the governmentcan take now to increase our security withoutcreating a massive surveillance program that hasthe potential of doing more harm than good," saidthe letter. "Federal, state and local governmentsalready have information systems in place thatcould play major roles with highly focused'terrorist spotting.'"

Nevertheless, the architects of GIA say their goal issimilar, only in reverse; they want average citizensto be able to keep track of information relating togovernment employees and politicians.

GIA's mission is "to empower citizens by providinga single, comprehensive, easy-to-use repository ofinformation on individuals, organizations, andcorporations related to the government of theUnited States of America," according to adescription posted on the GIA website.

Also, GIA's mission is "to allow citizens to submitintelligence about government-related issues,while maintaining their anonymity" and "to allowmembers of the government a chance toparticipate in the process."

"In the United States, there is a widening gapbetween a citizen's ability to monitor his or hergovernment and the government's ability tomonitor a citizen," says the website. "Averagecitizens have limited access to importantgovernment records, while available information isoften illegible. Meanwhile, the government'seagerness and means to oversee a citizen'spersonal activity is rapidly increasing."

McKinley told the Boston Globe "totalinformation" should be a two-way street betweengovernment and civilians.

"If total information exists, really the same effortshould be spent to make the same information atthe leadership level at least as transparent ? in myopinion, more transparent," he said.

Part of the technology involved in the site issimilar to data mining software used by suchsearch engines as Google. That includes, said theGlobe, "independent political sites likeopensecrets.org, as well as sites run bygovernment agencies."

Also, Csikszentmihalyi and McKinley tookadvantage of round-the-clock political coverage bycable channels such as C-SPAN. The MIT studentsuse video cameras to capture images of people onscreen, which are generally accompanied by theirnames.

The Globe says a computer program then "reads"each name and matches it to existing informationabout that person already stored on site.

With permission from Rick, I post his email to me here. He is occupied with other matters and will not be participating.

I think this is a quality analysis and presents important points forconsideration. Do note that there are some lawyerly specific terms here,such as "dicta" that have very specific meaning. No time to comment now, I'm out the door to "do The Dune" and train sticks.

If I have a chance later, I will offer a brief summary of my preference forstructuring the issue in 9th amendment terms.

Marc----------------

Marc,

As I saw that case, two issues existed. First, did the State of Texaspossess the power to ban "deviate sexual intercourse" between two persons of the same sex? Second, if Texas did possess that power, then does the US Constitution prohibit the State of Texas from exercising that power?

The majority opinion in Lawrence does not deal with the first issue. It onlyaddresses the second issue when it holds that the term "liberty" in the USConstitution includes a right of two persons of the same sex to engageconsensually in anal or oral sex in private. Justice O'Connor opined thatthe statute violated equal protection because it applied only to persons ofthe same sex.

I do not agree with the majority's opinion for several reasons.

The 14th Amendment clearly provides that a State may deprive a person of liberty with due process of law. Until Lawrence, two main violations of due process could occur in a State statute: A) the statute's language was so vague or overbroad as to provide a normal person with insufficient notice of the prohibited conduct; or, B) the conduct prohibited by the statute was a fundamental right "deeply rooted in this nation's history and traditions". If alternative B applies, then the reviewing court was supposed to apply strict scrutiny to the law in question and determine if a rational basis for prohibiting such conduct exists.

The majority opinion in Lawrence does not argue that private, consensualanal or oral sex are fundamental rights deeply rooted in this nation'shistory and traditions. It cannot do so, because no such history ortradition exists in the U.S. At the time of its ratification, the Constitution took effect in 13 States, all of which banned sodomy. As of 1961, sodomy was prohibited in all 50 States.

Instead, the majority creates a new, less severe requirement for applyingthe rational basis test. In Lawrence, the majority cited an "emergingawareness" that liberty to gives to adults in conducting their sex lives,p.11. As evidence of this "emerging awareness", the majority cites the ALI Modern Penal Code, a 1981 European Court of Human Rights decision, a 1957 British Parliamentary recommendation to decriminalize sodomy, the reduction of sodomy prohibitions from all 50 States in 1961 to 13 States today, dicta in Planned Parenthood vs. Casey (1992) and an equal protection decision, Romer vs. Evans (1996). That's very weak legal precedent upon which to base this substantial dilution in due process review.

My major objection to this reasoning is that legislative policy decisions todecriminalize certain conduct do not amount to a per se recognition of afederal constitutional right. At most, the legislative decriminalization ofcertain conduct creates a State statutory right or privilege to engage inthe previously banned conduct. But the majority had to rely upon this false constitutional argument in order to obtain its desired result, thenullification of the Texas statute.

The long term damage of this decision to the rule of law is incalculable.Now, it will be sufficient for courts to apply rational basis review if thepetitioners merely demonstrate "an emerging awareness" through a change in legisltive policy in half of the States. This creates another means by which the amendment process can be circumvented. Now, a petitioner does not need even to show a 3/4 majority of the States to cause constitutional change. According to the majority, Bowers was incorrectly decided in 1986 because 25 States had decriminalized sodomy.

I support the legislative policy to decriminalize sodomy between consenting adults. However, the US Constitution says what it says. Some of what it said in 1787 was not right; e.g., the 3/5 capitation and its recognition of slavery. Maybe the drafters should have foreseen the need to define more clearly personal liberty as it related to all sorts of various sex acts in private. They did not do so.

More importantly, I resent the majority's sloppy analysis, its use of dicta,and its use of foreign legislation. Most importantly, I resent themajority's lack of courage to hold that private consensual sodomy between adults is a fundamental right deeply rooted in this nation's history and traditions. Instead, its expediency to achieve a popular policy result has opened a Pandora's box that subjects all of us to a judicial tyranny that could nullify any legislative policy decision because it does not comport with the political views of 5 appointed Justices. In the long run, this is the real danger from this decision.

Rick----------------------Hi, Marc,

Thanks for passing that along. Have you read the decision?

"It only addresses the second issue when it holds that the term "liberty" inthe US Constitution includes a right of two persons of the same sex toengage consensually in anal or oral sex in private."

This is what they said:

"a) Resolution of this case depends on whether petitioners were free asadults to engage in private conduct in the exercise of their liberty underthe Due Process Clause. For this inquiry the Court deems it necessary toreconsider its Bowers holding. The Bowers Court's initial substantivestatement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual putforward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit aparticular sexual act, their penalties and purposes have more far-reachingconsequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6. "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formedunder compulsion of the State." Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

(d) Bowers' rationale does not withstand careful analysis. In his dissentingopinion in Bowers Justice Stevens concluded that (1) the fact a State'sgoverning majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physicalrelationships, even when not intended to produce offspring, are a form of"liberty" protected by due process. That analysis should have controlledBowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 17-18."

Notice they said the TX statute furthers no legitimate state interest.That's a rational basis review, a low standard. That is, they compared theright to fundamental rights, but didn't use a strict level of review. Fromwhat I can tell, they threw the TX law out using the lowest of the threestandards.

"Until Lawrence, two main violations of due process could occur in a Statestatute: A) the statute's language was so vague or overbroad as to provide a normal person with insufficient notice of the prohibited conduct; or, B) the conduct prohibited by the statute was a fundamental right "deeply rooted in this nation's history and traditions". If alternative B applies, then the reviewing court was supposed to apply strict scrutiny to the law in question and determine if a rational basis for prohibiting such conduct exists."

There are alternatives besides A and B. You have a high standard of review for the B cases, and when the right being taken away isn't "fundamental" you have a lower standard of review which looks for a legitimate state interest. Something in the middle would be the right to abortion.

"Instead, the majority creates a new, less severe requirement for applying the rational basis test."

He's got it backwards.

"....According to the majority, Bowers was incorrectly decided in 1986because 25 States had decriminalized sodomy...."

Not what they said. (see above)

"Instead, its expediency to achieve a popular policy result has opened aPandora's box that subjects all of us to a judicial tyranny that couldnullify any legislative policy decision because it does not comport with thepolitical views of 5 appointed Justices."

The TX law failed to meet a constitutional test, as it should have. So Marc,if depriving people of an interest in the non-criminalization of theirpersonal, private and consentual relationships, requires a legitimate stateinterest, maybe you can to explain to me what the legitimate state interest in this case was?

Ilene--------------------------

Hi Ilene:

The next several days are extremely busy for me but quickly:

I have read the entire decision (can someone print it here?)and its why Ifind Rick's reasoning so strong.

To summarize my position, the law is wrong and should be repealed. This does not change the fact that the LEGAL reasoning of the decision is suprisingly weak upon examination and I can understand Scalia's concerns. IMHO the correct analysis would be through the still sleeping 9th Amendment, combined with the "pursuit of happiness" of the Declaration of Independence, which is, IMHO, a form of "legislative history" of the Constitution.

Rick has drawn my attention to the problem presented by my analysis by the 10th Amendment and the fact of sodomy laws in all 13 states in 1789. I need to refresh my memory on the law/issues presented by the Bill of Rights applicability to the States before answering him.

But, as clever as I am, my superior interpretation :-p is a digression from the question presented here of the merits of the Lawrence decision.

This is a very broad decision, and like Roe, the logic used can and will beused to take the Court very deep into the cultural wars. And, like Roe, thesocio-political-legal trends already in play, make this end run of democracy, via logic that masks judicial imperialism, unnecessary even to the ends desired. Many of the results of the coming incursion into the cultural wars may please me, and others not, but at the moment (and I do confess to mixed feelings) I am of the thought that the opinion's reasoning is as unsound as the result is pleasing.

Question: Where else might this decision's rationale be applied? I seealready that an officer thrown out of the military for open gayness hasfiled suit on its basis.---------------------(Folks, what follows here is pretty damn high level legal thinking IMHO-Crafty)

Ilene,

IMO, the Lawrence decision is very dangerous. If left unchecked, itundermines the entire rule of law. It is based upon Justice Stevens' dissent in Bowers vs Hardwick. There, with sweepingly loose language, he argued that majority votes on moral choices alone were insufficient to constitute a rational basis for any law that restricts personal liberty.

Well, all laws restrict personal liberty. And all laws constitute moralchoices about individual conduct. The value of the majority view as to what constitute those choices is the heart of representative democracy in our republic. That is the heart of the social contract. It is the fairest wayfor society to make those choices.

If "liberty" as set forth in the US Constitution includes private,non-commercial, consensual sodomy between adults, then that conduct must constitute a fundamental right. Isn't liberty one of the three unalienable rights enumerated in the Declaration of Independence? But Lawrence vs Texas did not come to that conclusion.

Bowers vs Hardwick had two holdings. First, it held that sodomy betweenconsenting adults was not a fundamental right guaranteed by theConstitution. Second, it found a rational basis for the Georgia anti-sodomystatute.

Lawrence vs Texas only deals with the second part of the Bowers holding. It refuses to hold that the proscribed conduct is a fundamental right. But, as you point out correctly in your post, rational basis analysis alone is used in cases where fundamental rights are not involved. Private, consensual, non-commercial sex between adults is part of liberty, says the Lawrence majority. But we need only use a rational basis test. Therefore, liberty is not a fundamental right?!@#

In our republic, how do the people make their moral choices about laws? They make them through their elected representatives by voting for them in elections. Or they vote directly for those moral choices in referenda or constitutional amendment initiatives.

But Lawrence adopts Stevens' dissent and says that majority vote alone isinsufficient to prove a rational basis for the moral choice to ban sodomy.Then, why are the majority votes to decriminalize sodomy alone sufficient to prove an emerging awareness of sodomy's inclusion in liberty?! Why is the majority vote of the American Law Institute sufficient to prove no rational basis? Why did the majority votes to decriminalize sodomy in 25 States prove the absence of a rational basis in 1986 sufficient to make the Bowers decision wrong when it was made? That's what one of your excepts from Lawrence says in your post above.

I guess the relevance of majority votes to the Lawrence court depend upon whether the majority of Supreme Court justices agree with the value judgments made by the different majorities. That can be the only logical extension of an opinion that fails to find a fundamental right to privacy under the facts of Lawrence. That creates a dangerous precedent that can be used by unscrupulous people for their own personal aggrandizement. For, in its current form, Lawrence can now be used to impose restrictions as long as the politicians pack the court with justices who share their moral choices. Liberty is not a fundamental right. Or, at least, some portions of liberty are not fundamental rights. Then, we can watch as other parts of liberty slip from fundamental to non-fundamental rights.

Where will the line be drawn? Who will draw it? What will be their criteria?

olice in Florida are creating a new counterterrorism database designed to give law enforcement agencies around the country a powerful new tool to analyze billions of records about both criminals and ordinary Americans.

Organizers said the system, the Multistate Anti-Terrorism Information Exchange, dubbed Matrix, enables investigators to find patterns and links among people and events faster than ever before, combining police records with commercially available collections of personal information about most American adults. It would let authorities, for example, instantly find the name and address of every brown-haired owner of a red Ford pickup within a 20-mile radius of a suspicious event.

The state-level program, aided by federal funding, is poised to expand across the nation at a time when Congress has been sharply critical of similar data-driven systems on the federal level, such as a Pentagon plan for global surveillance and an aviation passenger-screening system.

The Florida system is another example of the ongoing post-Sept. 11, 2001, debate about the proper balance between national security and individual privacy. Yesterday, Washington, D.C., and Homeland Security Department officials announced plans to launch a pilot law enforcement data-sharing network that will include Virginia, Maryland, Pennsylvania, and New York.

Paul Cameron, president of Seisint Inc., the Boca Raton, Fla., company that developed the Matrix system and donated it to the state, said: ''It is exactly how law enforcement worked yesterday, except it's extraordinarily faster. In this age of risks that appear immediately, you have to be able to respond immediately.''

Some civil liberties groups fear Matrix will dramatically lower the threshold for government snooping.

''It's going to make fishing expeditions so much more convenient,'' said Ari Schwartz, associate director of the Center for Democracy and Technology, a nonprofit that monitors privacy issues.

''There's going to be a push to use it for many different kinds of purposes,'' Schwartz said.

The Justice Department has provided $4 million to expand the Matrix program nationally and will provide the computer network for information-sharing among the states, according to documents and interviews. The Department of Homeland Security has pledged $8 million, state officials said.

In some ways, Matrix resembles other data-driven counterterrorism initiatives that began after the Sept. 11 attacks. The Pentagon's controversial Terrorism Information Awareness program also sought to use personal data in new ways, but on a far larger scale. Started by retired Admiral John Poindexter, the idea was to create a global data-surveillance system that might detect hints of threats. Lawmakers sharply limited the program's funding several months ago, and now some intend to shut it down.

A Justice Department document from early this year describes Matrix as an effort ''to increase and enhance the exchange of sensitive terrorism and other criminal activity information between local, state, and federal law enforcement agencies.''

Florida officials say the system will be used only by authorized investigators under tight supervision.

Health-care advocates say a General Accounting Office report that found the federal government could not guarantee patients' medical privacy is not only accurate, but provides a glimpse of how helpless health-care consumers are when their privacy is breached.

The GAO report, released late last month, found of 25 federal agencies, compliance with Privacy Act requirements and those of the Office of Management and Budget ? which oversees implementation of the act ? was "uneven."

President George W. Bush embraces Secretary of Health and Human Services Tommy Thompson after speaking about health-care reform issues.

"As a result of this uneven compliance, the government cannot adequately assure the public that all legislated individual privacy rights are being protected.

The GAO said while it found 100 percent compliance among the agencies in issuing a rule "explaining to the public why personal information is exempt from certain provisions of the act," the congressional watchdog estimated "71 percent compliance with the requirement that personal information should be complete, accurate, relevant and timely before it is disclosed to a nonfederal organization."

The agency also said OMB leadership was needed to improve overall federal-government compliance.

Sue Blevins, spokeswoman for the Institute for Health Freedom, said the government's inability to protect medical records and privacy was obvious.

"I don't even need to read [the GAO report] to know the government can't guarantee privacy," she told WorldNetDaily. "How can the government guarantee medical privacy when under the new massive federal privacy rules, when [a consumer] goes to complain about a breach, there is no guarantee that it will even be investigated?"

"That is such a major loophole in the law," Blevins added.

Worse, Blevins said, patients whose privacy has been abused "get nothing, even if the government fines the guilty party." She said firms or health-care facilities that release private patient information inadvertently may have to pay a fine to the government, but the patient "is left empty-handed," with privacy information out in the public domain.

There is "almost an incentive for [the government] to allow the privacy breaches," she said, said the feds collect the fines.

As WorldNetDaily reported, critics of the government's medical-privacy rule never had much faith in it to begin with. They have said the rules, first developed during the Clinton administration, actually strip patients of protections rather than strengthen them.

"The ? rule eliminates patient consent and gives the federal government access to each and every citizen's personal medical records ? without patients' permission," Blevins said in an interview in April.

The government has defended the rule, which took effect April 14.

"From the time of Hippocrates, privacy in medical care has been of prime importance to patients and to the medical profession," Health and Human Services Secretary Tommy Thompson said in announcing the rule's implementation.

"? As electronic data transmission is becoming ingrained in our health-care system, we have new challenges to insure that medical privacy is secured. While many states have enacted laws giving differing degrees of protection, there has never before been a federal standard defining and ensuring medical privacy," he said. "Now new federal standards are coming into force to protect the personal health information of every American patient."

But Twila Brase, RN, a spokeswoman for Citizen's Council on Health Care, said the GAO report spells out a different story.

"This report should give Congress a good reason to reconsider building yet another database of citizen information," she said, referring to the proposed National Patient Safety Database under consideration in Congress.

"One system of records holds data on 290 million people. If that system happens to be one of the system that's out of compliance, the privacy rights of every citizen have already been violated, perhaps many times," said Brase.

Dr. Jane Orient, executive director of the American Association of Physicians and Surgeons, says government bureaucracy can't guarantee privacy.

"Demanding lots of mandatory reports will compromise patients' privacy and overload the system with trivia, hampering its ability to respond to what is really important," she told USA Today.

And Kathyrn Serkes, public affairs counsel for AAPS, added the new rules are so invasive patients will need "Miranda warnings" before answering medical questions.

AAPS has developed a standard privacy form patients can download, sign and give to their physicians.

"While masquerading as patient protection, the rules would actually eliminate any last shred of confidentiality and risk lives," she said. "The frontline defense for medical privacy always has been the patient's right to give or withhold consent to how his records are used and who sees them. These rules throw that out the window."

When a nation faces deadly attacks on its citizens at home and abroad, it is only reasonable to expect that its leaders will take appropriate measures to increase security. And since security inevitably means restrictions, it is likewise only reasonable to expect a public debate over the question of how much individual liberty should be sacrificed for how much individual and national safety.

That, however, is not the way our national debate has shaped up. From the public outcry over the Bush administration's measures to combat terrorism, one might suppose that America is well on the way to becoming a police state. A full-page newspaper ad by the American Civil Liberties Union, for instance, informs us that the Patriot Act, the administration's major security initiative, goes "far beyond fighting terrorism" and has "allowed government agents to violate our civil liberties--tapping deep into the private lives of innocent Americans."

According to Laura W. Murphy, director of the ACLU's Washington office, Attorney General John Ashcroft has "clearly abused his power," "systematically erod[ing] free-speech rights, privacy rights, and due-process rights." From the libertarian left, Anthony Lewis in the New York Times Magazine has charged President Bush with undermining safeguards for the accused in a way that Lewis "did not believe was possible in our country," while from the libertarian right, William Safire has protested the administration's effort to realize "the supersnoop's dream" of spying on all Americans.

The charge that our civil liberties are being systematically dismantled must be taken seriously. America has, in the past, overreacted to perceived security threats; the Palmer raids after World War I and the internment of Japanese-Americans during World War II are the most notorious examples. Are we once again jeopardizing the liberties of all Americans while also inflicting particular harm on Muslims in our midst?

Civil libertarians insist that we are. They condemn the indignities of security checks at airports, the tracking of Muslim visitors to the U.S., detentions of suspects for indefinite periods without access to the courts, and, when criminal charges are brought, the government's attempt to limit the accused's access to important evidence. Still worse in their view is the administration's evident intention of using military tribunals to try suspected terrorists. Finally, and most frightening of all to critics, the government has proposed the Terrorism Information Awareness program--initially and even more ominously known as the Total Information Awareness program--which would employ computers to gather and assess vast amounts of data relating to the transactions of, among others, unknowing American citizens.

There is no denying the rhetorical force of these accusations, or the success with which they have been used by the left as a rallying cry against President Bush. What is less clear is their validity, not just on their own terms but in relation to the radically altered domestic security situation we have faced since the attacks of 9/11. There may be a case to be made concerning the measures we have taken so far; but it is not the one presented by the critics.

Security and Ethnic Profiling

According to Ibrahim Hooper, a spokesman for the Council on American Islamic Relations, American Muslims have already lost many of their civil rights. "All Muslims are now suspects," Mr. Hooper has protested bitterly. The most salient outward sign of this is said to be the ethnic profiling that now occurs routinely in this country, particularly at airports but elsewhere as well--a form of discrimination widely considered to be self-evidently evil.

For most of us, airport security checks are the only firsthand experience we have with countermeasures to terrorism, and their intrusiveness and often seeming pointlessness have, not surprisingly, led many people to question such measures in general. But minor vexations are not the same as an assault on fundamental liberties. As for ethnic profiling, that is another matter, and a serious one. It is serious, however, not because it is rampant but because it does not exist.

That profiling is wicked per se is an idea that seems to have originated in connection with police work, when black civil-rights spokesmen began to allege that officers were relying on race as the sole criterion for suspecting someone of criminal activity. Profiling, in other words, equaled racism by definition. Yet, as Heather Mac Donald has demonstrated in "Are Cops Racist?," the idea rests on a false assumption--namely, that crime rates are constant across every racial and ethnic component of our society. Thus, if blacks, who make up 11% of the population, are subject to 20% of all police stops on a particular highway, racial bias must be at fault.

But the truth is that (to stick to this particular example) blacks do speed more than whites, a fact that in itself justifies a heightened awareness of skin color as one of several criteria in police work. Of course, there is no excuse for blatant racism; but, as Ms. Mac Donald meticulously documents in case after case around the country, there is by and large no evidence that police have relied excessively on ethnic or racial profiling in conducting their normal investigations.

The stigma attached to profiling where it hardly exists has perversely carried over to an area where it should exist but does not: the war against terrorism. This war, let us remember, pre-dates 9/11. According to Ms. Mac Donald, when a commission on aviation security headed by then-Vice President Al Gore was considering a system that would take into account a passenger's national origin and ethnicity--by far the best predictors of terrorism--both the Arab lobby and civil libertarians exploded in indignation. The commission duly capitulated--which is why the final Computer-Assisted Passenger Prescreening System specified that such criteria as national origin, religion, ethnicity and even sex were not to be taken into consideration.

This emasculated system did manage, even so, to pinpoint two of the September 11 terrorists on the day of their gruesome flight, but prevented any action beyond searching their luggage. As Ms. Mac Donald points out, had the system been allowed to use all relevant criteria, followed up by personal searches, the massacres might well have been averted.

Ironically, it is the very randomness of the new security checks that has generated so much skepticism about their efficacy. Old ladies, children, Catholic priests--all have been subject to searches of San Quentin-like thoroughness despite being beyond rational suspicion. According to the authorities, this randomness is itself a virtue, preventing would-be terrorists from easily predicting who or what will draw attention. But it is far more probable that frisking unlikely persons has nothing to do with security and everything to do with political correctness. Frightening as the prospect of terrorism may be, it pales, in the minds of many officials, in comparison with the prospect of being charged with racism.

Registration, Tracking and Detention of Visitors

Ethnic profiling, it is charged, is also responsible for the unjustified harassment and occasional detention of Arab and Muslim visitors to the United States. This is said to be an egregious violation not only of the rights of such persons but of America's traditional hospitality toward foreign visitors.

An irony here is that the procedures being deplored are hardly new, although they are being imposed with greater rigor. The current system has its roots in the 1950s in the first of a series of statutes ordering the Immigration and Naturalization Service to require aliens from countries listed as state sponsors of terrorism, as well as from countries with a history of breeding terrorists, to register and be fingerprinted, to state where they will be while in the U.S., and to notify the INS when they change address or leave the country.

Historically, however, the INS has been absurdly lax about fulfilling its mandate. When a visitor with illegal status--someone, for example, thought to have overstayed a student visa or committed a crime--is apprehended, the usual practice of immigration judges has been to release him upon the posting of a bond, unless he is designated a "person of interest." In the latter case, he is held for deportation or criminal prosecution and given a handbook detailing his rights, which include access to an attorney. It is a matter of dispute whether the proceedings before an immigration judge can be closed, as authorities prefer, or whether they must be open; the Supreme Court has so far declined to review the practice.

The procedures are now being adhered to more strictly, and this is what has given rise to accusations of ethnic or religious profiling. But such charges are as beside the point as in the case of domestic police work, if not more so. There is indeed a correlation between detention and ethnicity or religion, but that is because most of the countries identified as state sponsors or breeders of terrorism are, in fact, populated by Muslims and Arabs.

Stricter enforcement has also led to backlogs, as the Justice Department has proved unable to deal expeditiously with the hundreds of illegal immigrants rounded up in the aftermath of September 11. A report by the department's inspector general, released in early June, found "significant problems" with the processing of these cases. There is no question that in an ideal world, many of them would have been handled with greater dispatch, but it is also hardly surprising that problems that have long plagued our criminal justice system should reappear in the context of the fight against terrorism. In any case, the department has already taken steps to ameliorate matters. The only way for the problems to vanish would be for the authorities to cease doing their proper job; we have tried that route, and lived to regret it.

Discovery, Detention and Prosecution of Suspected TerroristsAccording to civil libertarians, the constitutional safeguards that normally protect individuals suspected of criminal activity have been destroyed in the case of persons suspected of links with terrorism. This accusation reflects an ignorance both of the Constitution and of long-established limits on the criminal-justice system.

Prior to 1978, and dating back at least to World War II, attorneys general of the United States routinely authorized warrantless FBI surveillance, wire taps, and break-ins for national-security purposes. Such actions were taken pursuant to authority delegated by the president as commander-in-chief of the armed forces and as the officer principally responsible for the conduct of foreign affairs. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and also posed unacceptable risks. (In one notorious instance, a judge had read aloud in his courtroom from highly classified material submitted to him by the government; even under more conscientious judges, clerks, secretaries and others were becoming privy to secret materials.)

Attorneys general were never entirely comfortable with these warrantless searches, whose legality had never been confirmed by the Supreme Court. The solution in 1978 was the enactment of the Foreign Intelligence Surveillance Act. Henceforth, sitting district court judges would conduct secret hearings to approve or disapprove government applications for surveillance.

A further complication arose in the 1980s, however, when, by consensus of the Department of Justice and the FISA court, it was decided that the act authorized the gathering of foreign intelligence only for its own sake ("primary purpose"), and not for the possible criminal prosecution of any foreign agent. The effect was to erect a "wall" between the gathering of intelligence and the enforcement of criminal laws. But last year, the Foreign Intelligence Surveillance Court of Review held that the act did not, in fact, preclude or limit the government's use of that information in such prosecutions. In the opinion of the court, arresting and prosecuting terrorist agents or spies might well be the best way to inhibit their activities, as the threat of prosecution might persuade an agent to cooperate with the government, or enable the government to "turn" him.

When the wall came down, Justice Department prosecutors were able to learn what FBI intelligence officials already knew. This contributed to the arrest of Sami al-Arian, a professor at the University of South Florida, on charges that he raised funds for Palestinian Islamic Jihad and its suicide bombers. Once the evidence could be put at the disposition of prosecutors, al-Arian's longstanding claim that he was being persecuted by the authorities as an innocent victim of anti-Muslim prejudice was shattered.

Treatment of Captured Terrorists

According to critics, by depriving certain captured individuals of access to lawyers, and by holding them without filing charges, the government is violating the Geneva Convention's protections of lawful combatants or prisoners of war. This is nonsense.

Four criteria must be met to qualify a person as a lawful combatant. He must be under the command of a person responsible for his subordinates, wear a fixed distinctive emblem recognizable at a distance, carry arms openly, and conduct operations in accordance with the laws and customs of war. The men the United States has captured and detained so far do not meet these criteria.

The government's policy is as follows: If a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the captive can be held until the end of hostilities, or be released, or be brought up on charges before a criminal court.

The government chose one of these options when it charged John Lindh, an American citizen who fought with the Taliban in Afghanistan, and Zacarias Moussaoui, who is thought to have been involved in the planning for September 11, with crimes. Lindh entered into a plea agreement under which he was sentenced to 20 years in prison. Moussaoui's case has proved more complicated. The government proposes to use only unclassified materials in its prosecution, but Moussaoui, a French citizen of Moroccan heritage who has admitted in open court to belonging to al Qaeda and swearing allegiance to Osama bin Laden, has demanded to see classified materials and to have access to other captured terrorists for the preparation of his defense.

For obvious reasons, Moussaoui's demands are unacceptable to the government, which does not want to divulge classified information or allow terrorists to communicate with each other. But the prosecutors' offer of an alternative procedure was rejected by the presiding judge. If the government continues to be unsuccessful in its determination to protect classified information, it may decide to prosecute Moussaoui in special military tribunals created for trying terrorists. That would surely trigger the outrage of civil libertarians, even though it is plainly arguable that Moussaoui could and perhaps should have been prosecuted there in the first place. I will return to this issue below.

In a somewhat separate category from Lindh and Moussaoui, both of whom have been charged with actual crimes, are the cases of two American citizens who have been detained rather than brought to trial because the government believes they possess undivulged valuable information. Yaser Esam Hamdi remains confined to the Norfolk, Va., Naval Brig, and Jose Padilla is confined at the Consolidated Naval Brig in Charleston, S.C.. Neither man has yet been charged.

Hamdi filed a petition for habeas corpus challenging the legality of his detention. Although he was captured in Afghanistan, where he was carrying an AK-47 during a time of active military hostilities, and although he was classified by the executive branch as an unlawful enemy combatant, Hamdi claimed the full protections of the Constitution as an American citizen. He argued that his detention without charge and without access to a judicial tribunal or the right to counsel was in violation of the Fifth and 14th amendments.

The Fourth U.S. Circuit Court of Appeals held otherwise. Although the detention of U.S. citizens is subject to judicial review, that review must be "deferential." The Constitution explicitly confers war powers on the political branches; in going to war in Afghanistan, the president had relied both on those powers and on Congress's authorization of "all necessary and appropriate force" against nations, organizations, or persons he determined to be involved in terrorist attacks. Hamdi, the court said, was indeed an enemy combatant subject to detention. It elaborated its rationale:

The detention of enemy combatants serves at least two vital purposes. First, detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and its allies. . . . In this respect, "captivity is neither a punishment nor an act of vengeance," but rather "a simple war measure."

Second, detention in lieu of prosecution may relieve the burden on military commanders of litigating the circumstances of a capture halfway around the globe. . . . As the Supreme Court has recognized [in Johnson v. Eisentrager (1950)], "it would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defense at home."

Hamdi's petition was denied, as was his right of access to an attorney or to seeing government documents.

Padilla was arrested upon his arrival at Chicago's O'Hare airport from Pakistan. The government indicted him, claiming he planned acts of terrorism, including the explosion of a radioactive "dirty bomb." When, like Hamdi, he petitioned for habeas corpus, the court held similarly that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants." Nevertheless, and over the government's objection, the court said it would allow Padilla the assistance of counsel to litigate the facts surrounding his capture and detention. (The government is now appealing this.) At the same time, the court disallowed the presence of counsel at Padilla's interrogations, and averred that the government need only show "some evidence" to prevail.

Anthony Lewis went ballistic. It is, he wrote, a "fundamental truth" that an individual cannot get justice against the state without the effective help of a lawyer, and this truth was "being challenged in a way that I did not believe was possible in our country." But Mr. Lewis was completely wrong. Despite his attempt to conflate the two categories, detention is not punishment; its purpose, rather, is to prevent members of enemy forces from causing harm while hostilities are in progress. Nor is Padilla the subject of a criminal proceeding; criminal-law rules do not apply when detention of an enemy is ordered by the President under his war powers. Hundreds of thousands of lawful prisoners of war have been held by the United States without the right to a lawyer, and unlawful enemy combatants are entitled to even fewer rights.

This makes perfect sense. A judicial system with rights of due process is crucial to a free society, but it is not designed for the protection of enemies engaged in armed conflict against us. Nor can we divert resources from the conduct of a war to the trial of every POW or unlawful combatant who wants to litigate. Besides, giving someone like Padilla a lawyer would frustrate the very purpose of his detention, and place American lives in danger. A lawyer's duty, acting within the bounds of ethical behavior, is to create delay and confusion, keeping alive his client's hopes of going free. Armed with such hopes, Padilla would be all the less likely to divulge what he knew, and plans for future terrorist attacks might thereby go undetected.

It might be argued that Padilla is not like other unlawful enemy combatants because he is a U.S. citizen taken on American soil. But the Supreme Court disposed of that distinction as long ago as 1942 in Ex parte Quirin. In that case, German would-be saboteurs had entered the U.S. illegally with the intention of attacking war industries and facilities. Upon capture, they sought habeas corpus, claiming a right to trial before a regular court rather than a military tribunal. In denying the petition, the court deemed it irrelevant that one of the captives claimed U.S. citizenship and was on U.S. soil when apprehended.

This is where there is a role for military tribunals, an institution that has played an important and honorable part in American jurisprudence throughout our history. In Quirin, the court made clear that such tribunals rightly enjoy a separate constitutional track from grand juries and trial by jury, which "at the time of the adoption of the Constitution [were] familiar parts of the machinery for criminal trials in the civil courts." Quite properly, however, the procedures followed by these civil institutions were, and had to be, "unknown to military tribunals[,] which are not courts in the sense of the judiciary articles" of the Constitution.Consistent with this understanding, military tribunals have been used by several presidents in time of war. In the Revolutionary War, before there even was a Constitution, George Washington employed them freely. So did Abraham Lincoln in the Civil War and Franklin D. Roosevelt in World War II. Although we remember the Nuremberg trial, with its many trappings of a civilian court, the victorious Allies did not always regard such open trials as the only or preferred method of proceeding. As the legal scholar Mark Martins reminds us, "German regular army soldiers were also defendants in many of the thousands of military courts and commissions convened by the Allies after the war in different zones of occupation."

In any event, the image of military tribunals as drumhead courts manned by stony-faced officers ready to convict regardless of the evidence is a fantasy. In reality, military courts may achieve just and equitable results more frequently than the run of civilian juries. Military judges tend to be more scrupulous in weighing evidence, in resisting emotional appeals, and in respecting the plain import of the laws. There are no Lance Itos or Johnnie Cochrans in military trials. If, as the war against the terrorists drags on, we are forced to have recourse to military tribunals, there may well be clear gains for both justice and security.

There are, to be sure, costs to be paid for going the route of military courts. It was no doubt partly out of a desire to placate critics, both at home and abroad, that President Bush first announced that U.S. citizens would be tried in our regular courts, and that the decision was made to try even Moussaoui in a federal district court. In the future, moreover, some of our allies may refuse to extradite captured terrorists if it is known they are likely to land before a military tribunal.

But the critics show every sign of being implacable, and in any case the cost of staying with the civil route is likely to be higher. In a district court a defense attorney will almost inevitably demand access to classified information; continued disclosure of such information in court would inform not only Muslim terrorists but all the world's intelligence services of the information we have and our methods of gathering it. If compromising national security is one alternative that may be forced on government by the demand for access to classified material, the other is to drop charges. Neither alternative is acceptable.

The Terrorism Information Awareness Program

Among menaces to American liberty, this has been widely held to be the most sinister of all. Here is William Safire:

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every website you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend--all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database." To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you--passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance--and you have the supersnoop's dream.

What is the reality? The Terrorism Information Awareness program, or TIA, is still only in a developmental stage; we do not know whether it can even be made to work. If it can, it might turn out to be one of the most valuable weapons in America's war with terrorists.

In brief, the program would seek to identify patterns of conduct that indicate terrorist activity. This entails separating small sets of transactions from a vast universe of similar transactions. Since terrorists use the same avenues of communication, commerce, and transportation that everybody else uses, the objective is to build a prototype of an intelligence system whose purpose would be to find terrorists' signals in a "sea of noise." Taking advantage of the integrative power of computer technology, the system would allow the government to develop hypotheses about possible terrorist activity, basing itself entirely on data that are already legally available.

But we may never find out whether the program's objective can be achieved, since TIA has been effectively gutted in advance. Impressed, no doubt, by the ideological breadth of the opposition to TIA, Congress was led to adopt a vague prohibition, sponsored by Democratic Sen. Ron Wyden, draining TIA of much of its value. The amendment specifies that the program's technology may be used for military operations outside the U.S. and for "lawful foreign intelligence activities conducted wholly against non-United States persons." By inference, TIA may therefore not be used to gather information about U.S. citizens or resident aliens--despite the clear fact that significant number of persons in these categories have ties to terrorist groups.

Writing in National Journal, Stuart Taylor Jr. has offered a hypothetical instance of how the Wyden amendment can cripple intelligence gathering. Suppose the government learns that elements of a deadly gas have been smuggled into the U.S. on flights from Germany by unidentified al Qaeda operatives during a particular time frame. A TIA-based query of foreign databases might generate a list of possible terrorists. The Wyden amendment, however, would prohibit a search for the names of any who might be Americans, and might even put beyond reach any mixed databases that happened to include Americans. It would similarly bar looking in U.S. databases for passengers on the relevant flights whose names are also on government databases of known or suspected terrorists. Likewise out of bounds would be queries directed at legally accessible commercial databases--asking, for example, about purchases of canisters suitable for the deployment of the deadly gas.

Are there techniques that could be devised to prevent TIA from becoming the playground of Mr. Safire's hypothetical supersnoop without disabling it altogether? In domestic criminal investigations, courts require warrants for electronic surveillances. As we have seen, the Foreign Intelligence Surveillance Act also requires judicial approval of surveillances for intelligence and counterintelligence purposes. While there would be no need for a warrant-like requirement in initiating a computer search, other safeguards can be imagined for TIA. Among them, according to Mr. Taylor, might be "software designs and legal rules that would block human agents from learning the identities of people whose transactions are being 'data-mined' by TIA computers unless the agents can obtain judicial warrants by showing something analogous to the 'probable cause' that the law requires to justify a wiretap."

Critics of TIA have made much of another circumstance--that the technology is being developed by a Defense Department agency known as the Defense Advanced Research Projects Agency, until recently headed by John Poindexter. A former Navy admiral, Mr. Poindexter was convicted of lying to Congress in the 1980's in connection with the Iran-contra affair. It is hardly clear, however, what relevance this has to the development of software for TIA, and in any case, if and when the development succeeds, TIA will be operated by another agency.

Still another line of criticism zeroes in on constitutional issues that may arise under the First and Fourth amendments. The Foreign Intelligence Surveillance Act has already dealt with the former--protecting the free-speech rights of Americans--by providing that "no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution"; a similar provision could be made to apply to TIA. As for the Fourth Amendment, which guarantees freedom from unreasonable searches and seizures, TIA is designed to acquire information not from individuals or other entities but only from other government agencies and third parties (such as credit agencies) to which the information has already been divulged or that have themselves conducted a search. As the Supreme Court held in Smith v. Maryland (1979), an individual "has no legitimate expectation of privacy in information he voluntarily turns over to third parties." We limit or waive our rights to privacy all the time, by, for example, giving financial records to a bank, filling out a public questionnaire, or dialing a phone number.

The benefits of the TIA program are palpable, and potentially invaluable; the hazards are either hyped or imaginary. There is nothing to prevent Congress from replacing the Wyden amendment with oversight provisions, or from requiring reasonable safeguards that would preserve the program's efficacy.

What Remains to Be Done

That opponents of the Bush administration's efforts to protect American security have resorted to often shameless misrepresentation and outright scaremongering does not mean those efforts are invulnerable to criticism. They are indeed vulnerable--for not going far enough.

In addition to the lack of properly targeted security procedures at airports, and the failure to resist the gutting of TIA, a truly gaping deficiency in our arrangements is the openness of our northern and southern borders to illegal entrants. In the south, reportedly, as many as 1,000 illegal aliens a day enter through Arizona's Organ Pipe National Monument, where they have become so brazen that they have cleared their own private roads. In the north, there are plenty of easily accessible and unmanned entry points from Canada. So far, Washington has not adequately responded to calls for more park-ranger staffing and military assistance, let alone addressed the lamentable condition of our immigration procedures in general.

There is, in short, plenty of work to go around. The war we are in, like no other we have ever faced, may last for decades rather than years. The enemy blends into our population and those of other nations around the world, attacks without warning, and consists of men who are quite willing to die in order to kill us and destroy our civilization. Never before has it been possible to imagine one suicidal individual, inspired by the promise of paradise and armed with a nuclear device, able to murder tens of thousands or even hundreds of thousands of Americans in a single attack. Those facts justify what the administration has already done, and urgently require more.

Of course, to say this, or to question the arguments of critics, is to risk being accused of censorship, actual or pre-emptive, or even McCarthyism. Here is an article in the New York Times raising the alarm about statements by Attorney General John Ashcroft:

In the past, Mr. Ashcroft has gone so far as to question the loyalty of those who challenge the constitutionality of his tactics. In a defining moment in December 2001 at a Senate hearing, Mr. Ashcroft declared: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends."

As it happens, "phantoms of lost liberty" is a perfectly apt description for much of the commentary that has been offered on the administration's initiatives. It is demonstrably true, moreover, that people who recklessly exaggerate the threat to our liberties in the fight against terrorism do give ammunition, moral and otherwise, to our enemies. Asserting as much does not impugn the loyalty of such people. They are perfectly free to say what they think, and as loudly as they please. But neither should they themselves be immune from criticism, even by a government official.

Mr. Bork is a senior fellow at the American Enterprise Institute and Tad and Dianne Taube distinguished visiting fellow at the Hoover Institution. This article appears in the July/August issue of Commentary.

A group consisting of patients, doctors and privacy advocates has filed suit in federal court charging a new government rule actually "eliminates the right to privacy" of past and future communications between doctor and patient.

In papers filed in U.S. district court in Philadelphia, the group ? Citizens for Health, represented by Washington, D.C. lawyer James Pyles ? accuses "the federal government of ignoring overwhelming public opinion to prevent the widespread use of medical records and instead implemented new regulations that threaten essential liberties guaranteed by the Constitution."

Specifically, the group alleges the new rule, which was implemented under the Health Insurance Portability and Accountability Act, or HIPAA, of 1996, eliminates medical privacy and "jeopardizes the privacy of past and future communications between patients and their physicians."

President George W. Bush embraces Secretary of Health and Human Services and former Wisconsin Governor Tommy Thompson after speaking about healthcare reform issues at the Medical College of Wisconsin in Milwaukee, Wis., February 11, 2002.

Under the rule, which was implemented by Health and Human Services Secretary Tommy Thompson April 14, "virtually all personal health information about every aspect of an individual's life can be used and disclosed routinely without notice, without the individual's consent and against his or her will," the group said in a statement.

Some of the allegations mirror findings by the General Accounting Office, Congress' watchdog agency, which reported in July the federal government could not guarantee patients' medical privacy.

The GAO report found that of 25 federal agencies, compliance with Privacy Act requirements and those of the Office of Management and Budget ? which oversees implementation of the act ? was "uneven."

"As a result of this uneven compliance, the government cannot adequately assure the public that all legislated individual privacy rights are being protected," said the agency.

The privacy rule, which was under consideration during the Clinton administration, has been routinely criticized by health advocates as being too revealing of privacy, not protective of it. But that's a charge the government has just as regularly denied.

"From the time of Hippocrates, privacy in medical care has been of prime importance to patients and to the medical profession," Thompson said.

As electronic data transmission is becoming ingrained in our health-care system, we have new challenges to insure that medical privacy is secured. While many states have enacted laws giving differing degrees of protection, there has never before been a federal standard defining and ensuring medical privacy," he continued. "Now new federal standards are coming into force to protect the personal health information of every American patient."

But critics say the government's standards aren't the problem. Rather, they say the problem is medical records are now much too easy to access by a multitude of third parties.

Indeed, says the group, Health and Human Services' "own findings show that the rules affect the medical privacy rights of 'virtually every American,' and allows more than '600,000 entities' access to their records ?" That list includes insurance companies, banks, employers, and law enforcement agencies.

Pyles initially filed suit in April, but Thursday's filing is for summary judgment. In court documents he alleged "that HHS changed the privacy requirement, even though the agency officials had received thousands of comments from citizens urging them to preserve their rights."

"Further," he argued, "the amended privacy rule provides no opportunity or mechanism for individuals to object or refuse to have their personal health information used and disclosed for routine purposes repeatedly."

Kathyrn Serkes, public affairs counsel for the American Association of Physicians and Surgeons, said the new rules are so invasive patients will need "Miranda warnings" before answering medical questions.

"While masquerading as patient protection, the rules would actually eliminate any last shred of confidentiality and risk lives," Serkes said. "The frontline defense for medical privacy always has been the patient's right to give or withhold consent to how his records are used and who sees them. These rules throw that out the window."

Pyles represents 10 national and state associations, seven individuals and two "interveners," as well as 750,000 members of the associations.

Among them, Dr. Deborah Peel ? an Austin, Texas psychiatrist who has testified before Congress on the issue of medical privacy ? says Americans should be concerned about the manner in which their rights were disregarded and their opinions discounted.

"The 'HIPAA privacy rule' was turned into a massive 'disclosure rule,'" she said.

A consumer-protection group is planning to lead a demonstration against the introduction of electronic identification technology critics say violates basic privacy rights.

According to a statement issued by Consumers Against Supermarket Privacy Invasion and Numbering, or CASPIAN, opponents will protest the launch of the Electronic Product Code, or EPC, network during a Sept. 16 symposium at Chicago's McCormick Place Convention Center.

Enlarged graphic of RFID tag.

Currently, all products are identified by a series of lines and numbers via the Universal Product Code, or UPC ? which is commonly referred to as "bar coding." But industry and manufacturing leaders want to adopt the EPC network, which involves embedding computer chips that emit radio signals inside products. The signals, which can be picked up by "readers" at varied distances, will alert in-store and warehouse managers to current stock levels, streamlining product management while aiding in the prevention of theft.

But opponents of the technology say the so-called "spy chips" could also be misused by industry and government to not only identify products but also consumers who buy them. By incorporating Radio Frequency Identification, or RFID, technology within the EPC network, corporations can identify shoppers as well as products.

"We have serious privacy and civil-liberties concerns about this technology. Corporations and governments could use it to register products to individuals and secretly track them after purchase," says Katherine Albrecht, founder and director of CASPIAN.

Peter Fox, a spokesman for shaving supply giant Gillette ? one of the first companies planning to use EPC technology ? downplayed concerns about civil-liberties violations.

"There seems to be a level of misunderstanding" about the use of the technology, Fox told WorldNetDaily.

Back in 1999, Fox said Gillette was "a founding sponsor" of the AutoID Center, a corporation helping to develop both barcode and EPC technology, because "our goal is ? to have our products on retail shelves where consumers can buy them."

"That may be a simple goal, but the truth of the matter is, that doesn't happen," he said. "Each year billions of dollars are lost by manufacturers and retailers because products get lost in the supply chain, and for lots of different reasons."

Data error, mistakes in inventory and outright theft are some ways products can get "lost" in the system. As the cost of covering those losses rises, so too does the cost of the product, he explained.

But Albrecht says RFID technology is much more than an "improved bar code," and she believes industry is dismissing "consumer concerns."

"These RFID spy chips can be read silently from a distance, right through your clothes, wallet, backpack or purse by anyone with the right reader device," she said. "For example, the chips can be secretly embedded in credit cards or sewn into the seams of pants where they can be used to observe people's movements without their knowledge or consent."

As WorldNetDaily reported, CASPIAN led a boycott against Gillette for the company's decision to use the technology.

Days later, Gillette renounced some uses of the technology. ====================--------------------------------------------------------------------------------LIFE WITH BIG BROTHERGillette renounces 'smart-shelf' technologyControversial plan called for tracking merchandise, photographing customers

The Gillette Company ? the world's leading shaving-supplies manufacturer ? says it is scrapping plans to deploy its controversial "smart-shelf" product-tracking technology, which would have involved planting tiny computer chips in its product packaging and surreptitiously photographing customers.

As WorldNetDaily reported, the tracking technology, called Radio Frequency Identification, or RFID, centered on small tracking chips being affixed to Gillette products. The chips can track items at a distance, even through personal items such as a purse, backpack or wallet, and have been anticipated to replace eventually the bar codes now used to track all retail items.

Close-up of RFID tag.

Gillette, a leading backer of RFID, wanted to go a step further. The company was also planning to install tiny cameras on shelves containing its products in stores, which would then photograph customers as they removed items from the shelf, consumer advocate Katherine Albrecht told WorldNetDaily last month.

However, Gillette has now decided to shelve its "smart-shelf" plans, perhaps for as long as a decade, reports the Financial Times.

The shaving supplier had ordered some 500 million of the RFID tag chips from a small California tech company, Alien Technologies. The chips were to be delivered this year, according to the Times.

"Gillette denied it had abandoned an earlier plan to use the technology in individual products on store shelves. But a spokesman said the company did not now expect RFID tags to be used to monitor individual products in stores for at least 10 years," the report said.

Rather, Gillette has now decided to place the chips on pallets of merchandise, so it can track them from warehouse to warehouse and from warehouse to store, said the Times.

In January, Gillette announced plans to use the RFID tags. "If successful, up to half a billion tags could be placed on Gillette products over the next few years," according to a company statement.

News of Gillette's plan to cancel its "smart-shelf" trials comes a day after WorldNetDaily reported a group founded by Albrecht had begun a boycott of Gillette products as a protest against RFID.

The boycott, sponsored by Albrecht's parent group, Consumers Against Supermarket Privacy Invasion and Numbering, or CASPIAN, sought to punish Gillette for utilizing in-store and in-product technology capable of tracking buyers.

Although it's unclear to what degree, if any, Gillette's decision to abandon in-store RFID was based on the boycott, Albrecht told WorldNetDaily she "absolutely" believes it impacted the company's announcement.

"We've gotten quite a few letters and quite a few phone calls," she said. "It's been hectic."

An e-mail forwarded to WorldNetDaily by Albrecht contains a customer reply from Paul Fox, a spokesman for Gillette. In it, Fox claims the corporation is interested only in using RFID technology to monitor its "supply chain."

"We have not and have no intentions to use this technology to track, videotape or photograph consumers," Fox said in the e-mail.

Fox did not respond to inquiries by WorldNetDaily before publication of this report.

Despite Gillette's denial, Albrecht said the boycott would continue until the company completely and publicly renounces the use of the RFID tags in its individual products.

"What I'd really like to see is Gillette say they're not putting these tags in individual products because when they do, it invites abuse," said Albrecht. "If Gillette claims they have no control over [the abuse], I say sure they do ? stop putting the tags in the packages." -==================Auto-ID: Tracking everything, everywhere Katherine Albrecht, CASPIAN[The following is an excerpt from the article, "Supermarket Cards: Tip of the Retail Surveillance Iceberg," accepted for Publication in the Denver University Law Review, June 2002]

Supermarket cards and other retail surveillance devices are merely the opening volley of the marketers' war against consumers. If consumers fail to oppose these practices now, our long term prospects may look like something from a dystopian science fiction novel.

A new consumer goods tracking system called Auto-ID is poised to enter all of our lives, with profound implications for consumer privacy. Auto-ID couples radio frequency (RF) identification technology with highly miniaturized computers that enable products to be identified and tracked at any point along the supply chain.

The system could be applied to almost any physical item, from ballpoint pens to toothpaste, which would carry their own unique information in the form of an embedded chip. The chip sends out an identification signal allowing it to communicate with reader devices and other products embedded with similar chips.

Analysts envision a time when the system will be used to identify and track every item produced on the planet.

A number for every Item on the planet

Auto-ID employs a numbering scheme called ePC (for "electronic product code") which can provide a unique ID for any physical object in the world. The ePC is intended to replace the UPC bar code used on products today.

Unlike the bar code, however, the ePC goes beyond identifying product categories -- it actually assigns a unique number to every single item that rolls off a manufacturing line. For example, each pack of cigarettes, individual can of soda, light bulb or package of razor blades produced would be uniquely identifiable through its own ePC number.

Once assigned, this number is transmitted by a radio frequency ID tag (RFID) in or on the product. These tiny tags, predicted by some to cost less than 1 cent each by 2004, are "somewhere between the size of a grain of sand and a speck of dust." They are to be built directly into food, clothes, drugs, or auto-parts during the manufacturing process.

Receiver or reader devices are used to pick up the signal transmitted by the RFID tag. Proponents envision a pervasive global network of millions of receivers along the entire supply chain -- in airports, seaports, highways, distribution centers, warehouses, retail stores, and in the home. This would allow for seamless, continuous identification and tracking of physical items as they move from one place to another, enabling companies to determine the whereabouts of all their products at all times.

Steven Van Fleet, an executive at International Paper, looks forward to the prospect. "We'll put a radio frequency ID tag on everything that moves in the North American supply chain," he enthused recently.

The ultimate goal is for Auto-ID to create a "physically linked world" in which every item on the planet is numbered, identified, catalogued, and tracked. And the technology exists to make this a reality. Described as "a political rather than a technological problem," creating a global system ?would . . . involve negotiation between, and consensus among, different countries.? Supporters are aiming for worldwide acceptance of the technologies needed to build the infrastructure within the next few years.

The implications of Auto-ID

"Theft will be drastically reduced because items will report when they are stolen, their smart tags also serving as a homing device toward their exact location." - MIT's Auto-ID Center

Since the Auto-ID Center's founding at the Massachusetts Institute of Technology (MIT) in 1999, it has moved forward at remarkable speed. The center has attracted funding from some of the largest consumer goods manufacturers in the world, and even counts the Department of Defense among its sponsors. In a mid-2001 pilot test with Gillette, Philip Morris, Procter & Gamble, and Wal-Mart, the center wired the entire city of Tulsa, Oklahoma with radio-frequency equipment to verify its ability to track Auto-ID equipped packages.

Though many Auto-ID proponents appear focused on inventory and supply chain efficiency, others are developing financial and consumer applications that, if adopted, will have chilling effects on consumers' ability to escape the oppressive surveillance of manufacturers, retailers, and marketers. Of course, government and law enforcement will be quick to use the technology to keep tabs on citizens, as well.

The European Central Bank is quietly working to embed RFID tags in the fibers of Euro bank notes by 2005. The tag would allow money to carry its own history by recording information about where it has been, thus giving governments and law enforcement agencies a means to literally "follow the money" in every transaction. If and when RFID devices are embedded in banknotes, the anonymity that cash affords in consumer transactions will be eliminated.

Hitachi Europe wants to supply the tags. The company has developed a smart tag chip that -- at just 0.3mm square and as thin as a human hair -- can easily fit inside of a banknote. Mass-production of the new chip will start within a year.

Consumer marketing applications will decimate privacy

"Radio frequency is another technology that supermarkets are already using in a number of places throughout the store. We now envision a day where consumers will walk into a store, select products whose packages are embedded with small radio frequency UPC codes, and exit the store without ever going through a checkout line or signing their name on a dotted line." Jacki Snyder, Manager of Electronic Payments for Supervalu (Supermarkets), Inc., and Chair, Food Marketing Institute Electronic Payments Committee

Auto-ID would expand marketers' ability to monitor individuals' behavior to undreamt of extremes. With corporate sponsors like Wal-Mart, Target, the Food Marketing Institute, Home Depot, and British supermarket chain Tesco, as well as some of the world's largest consumer goods manufacturers including Proctor and Gamble, Phillip Morris, and Coca Cola it may not be long before Auto-ID-based surveillance tags begin appearing in every store-bought item in a consumer's home.

According to a video tour of the "Home of the Future" and "Store of the Future" sponsored by Proctor and Gamble, applications could include shopping carts that automatically bill consumer's accounts (cards would no longer be needed to link purchases to individuals), refrigerators that report their contents to the supermarket for re-ordering, and interactive televisions that select commercials based on the contents of a home's refrigerator.

Now that shopper cards have whetted their appetite for data, marketers are no longer content to know who buys what, when, where, and how. As incredible as it may seem, they are now planning ways to monitor consumers' use of products within their very homes. Auto-ID tags coupled with indoor receivers installed in shelves, floors, and doorways, could provide a degree of omniscience about consumer behavior that staggers the imagination.

Consider the following statements by John Stermer, Senior Vice President of eBusiness Market Development at ACNielsen:

"[After bar codes] [t]he next 'big thing' [was] [f]requent shopper cards. While these did a better job of linking consumers and their purchases, loyalty cards were severely limited...consider the usage, consumer demographic, psychographic and economic blind spots of tracking data.... omething more integrated and holistic was needed to provide a ubiquitous understanding of on- and off-line consumer purchase behavior, attitudes and product usage. The answer: RFID (radio frequency identification) technology.... In an industry first, RFID enables the linking of all this product information with a specific consumer identified by key demographic and psychographic markers....Where once we collected purchase information, now we can correlate multiple points of consumer product purchase with consumption specifics such as the how, when and who of product use."

Marketers aren't the only ones who want to watch what you do in your home. Enter again the health surveillance connection. Some have suggested that pill bottles in medicine cabinets be tagged with Auto-ID devices to allow doctors to remotely monitor patient compliance with prescriptions.

While developers claim that Auto-ID technology will create "order and balance" in a chaotic world, even the center's executive director, Kevin Ashton, acknowledges there's a "Brave New World" feel to the technology. He admits, for example, that people might balk at the thought of police using Auto-ID to scan the contents of a car's trunk without needing to open it. The Center's co-director, Sanjay E. Sarma, has already begun planning strategies to counter the public backlash he expects the system will encounter. ******

Sources: This passage has 27 footnoted references associated with it. I will be happy to send a copy of the entire article, including footnotes and references, as an email attachment on request.

RSA Security will develop technology that jams the signals emitted by radio frequency identification tags

Researchers at a major security firm have developed a blocking technique to ease privacy concerns surrounding controversial radio frequency identification technology.

The labs at RSA Security on Wednesday outlined plans for a technology they call blocker tags, which are similar in size and cost to radio frequency identification (RFID) tags but disrupt the transmission of information to scanning devices and thwart the collection of data.

The technique, one of few RFID-blocking technologies being worked on by researchers, is still a concept in the labs. But the next step is to develop prototype chips and see if manufacturers are interested in making the processors, according to Ari Juels, a principal research scientist with RSA Laboratories. Blocker and RFID tags are about the size of a grain of sand and cost around 10 cents.

RFID technology uses microchips to wirelessly transmit product serial numbers to a scanner without the need for human intervention. While the technology is potentially useful in improving supply chain management and preventing theft in stores, consumer privacy groups have voiced concerns about possible abuses of the technology if product-tracking tags are allowed to follow people from stores into their homes. Many retailers view RFID as an eventual successor to the barcode inventory tracking system, because it promises to cut distribution costs for manufacturers and improve retailing margins.

RSA's technique would address the needs of all parties involved, according to Juels. Other options, such as a kill feature embedded in RFID tags, also are available, but with blocker tags, consumers and companies would still be able to use the RFID tags without sacrificing privacy.

"This is not meant to be a hostile tool," Juels said. "It balances consumer privacy and retail use in a profitable way... Tags are too useful to completely disable them."

Retailers have been testing how to use RFID technology in their warehouses to improve inventory management and have dipped their toes into product-level tracking.

Juels said that he foresees a day when tags in clothes can tell washing machines the proper way they need to be washed.

The idea isn't to disable RFID tags, but instead to disrupt the transmission of certain information to scanning devices when consumers want privacy. Blocker tags could be embedded in watches or bags.

Juels said the issue of privacy with regards to RFID technology has been overblown but that there is a need to establish how to best address those concerns before the technology becomes more prevalent.

"If we don't think of it now, it will be more difficult in the future," he said.

WASHINGTON, DC -- The entire nation owes radio broadcaster Rush Limbaugh a debt of gratitude, Libertarians say, because his ordeal has exposed every drug warrior in America as a rank hypocrite.

"One thing we don't hear from American politicians very often is silence," said Joe Seehusen, Libertarian Party executive director. "By refusing to criticize Rush Limbaugh, every drug warrior has just been exposed as a shameless, despicable hypocrite. And that's good news, because the next time they do speak up, there'll be no reason for anyone to listen."

The revelation that Limbaugh had become addicted to painkillers -- drugs he is accused of procuring illegally from his housekeeper -- has caused a media sensation ever since the megastar's shocking, on-air confession last week.

As the Limbaugh saga continues, here's an important question for Americans to ask, Libertarians say: Why are all the drug warriors suddenly so silent?

"Republican and Democratic politicians have written laws that have condemned more than 400,000 Americans to prison for committing the same 'crime' as Rush Limbaugh," Seehusen pointed out. "If this pill-popping pontificator deserves a get-out-of-jail-free card, these drug warriors had better explain why."

Given their longstanding support for the Drug War, it's fair to ask:

Why haven't President George Bush or his tough-on-crime attorney general, John Ashcroft, uttered a word criticizing Limbaugh's law- breaking?

Why aren't drug czar John P. Walters or his predecessor, Barry McCaffrey, lambasting Limbaugh as a menace to society and a threat to "our children?"

Finally, why aren't bloviating blabbermouths like William Bennett publicly explaining how America would be better off if Limbaugh were prosecuted, locked in a steel cage and forced to abandon his wife, his friends, and his career?

The answer is obvious, Seehusen said: "America's drug warriors are shameless hypocrites who believe in one standard of justice for ordinary Americans and another for themselves, their families and their political allies.

"That alone should completely discredit them."

But there's an even more disturbing possibility, Seehusen said: that the people who are prosecuting the Drug War don't even believe in its central premise -- which is that public safety requires that drug users be jailed.

"The Bushes and Ashcrofts and McCaffreys of the world may believe, correctly, that individuals fighting a drug addiction deserve medical, not criminal treatment," he said. "That would explain why they're not demanding that Limbaugh be jailed.

"But if that's the case, these politicians have spent decades tearing apart American families for their own political gain. And that's an unforgivable crime."---------------------------------------------------------------------

Some 25 foreign nations are planning to require visiting Americans to be fingerprinted, according to a prominent biometrics expert and president of the company that produces the computerized desktop booking stations used by many law enforcement authorities.

The plans to screen American travelers represent a form of retaliation against new U.S. Department of Homeland Security requirements for foreign travelers entering the country, said Joseph J. Atick, president and chief executive officer of Identix, Inc., a biometrics company that won a five-year blanket purchase agreement for its TouchPrint 3000 line fingerprint biometric live scan booking stations and desktop systems, which will be provided to the U.S. Citizenship and Immigration Services.

Atick made the statement at a recent Biometrics Consortium Conference in Virginia.

The CIS anticipates expanding the Application Support Centers Program in 2004 to worldwide operations on up to five continents. The overseas ASC Program will allow biometrics capture for background checks prior to an applicant entering the United States.

WND asked Identix spokesperson Meir Kahtan for a transcript of the address, which reportedly referenced the ?25 countries.? Kahtan responded that there was no transcript or audio record available. Dr. Atick?s powerpoint presentation foresees entry/exit systems throughout the world as an significant opportunity for identification management development.

Kahtan did not respond to other WND inquiries about Atick?s comments, including the time frame for implementation of the program and whether Identix was to be the lead provider of equipment for foreign efforts to fingerprint American travelers.

WND asked Nuala O?Connor Kelly, chief privacy officer for Homeland Security, to verify the report. Kelly deferred comment to the DHS press office, adding, ?The questions you're asking call for conjecture about activities that are beyond the scope of DHS's purview, but that are rather the activities of other countries, and so beyond the scope of my ability to answer.?

Nuala O?Connor Kelly was a moderator at the Biometrics 2003 convention.

On October 29, Homeland Security director Tom Ridge told a Berlin news conference that an agreement between America and Europe on ways to combine fingerprints and facial recognition in travel documents could lead to a global standard.

When asked whether DHS was aware of the plan, spokesman Dennis Murphy told WND, "I?m not personally aware of that," but added, "I?m not surprised. There's an ICAO standard for machine-readable passports that need to be linked to biometrics by October 2004. Optical finger scans will be linked to a database."

When asked whether data collected abroad, including Americans? travel itineraries and fingerprints, would be shared with U.S. agencies, Murphy deferred to the U.S. State Department, saying, "All that would have to go through State Department protocol and agreements as to which information comes back ? if so."

Atick?s PowerPoint slides from Biometrics 2003 reference "Building and linking databases to uncover identities that could pose a threat," and include a graphic of a smart-card information being routed through FBI and Interpol databases.

State Department spokesperson Joann Moore would not comment on whether her department or other federal agencies would be able to obtain the data from foreign countries.

About the plan to fingerprint American travelers abroad, Moore said, "Each country has its own regulations on how it processes travelers. That would be up to the countries," adding, "Maybe we'll know more when it happens."

When pressed for more details, Moore said the Bureau of Consular Affairs could give out no more information at this time, "about countries that are considering doing this."

Lee Tien, senior staff attorney for the Electronic Frontier Foundation, isn?t surprised Americans will be fingerprinted ? a procedure traditionally reserved for criminals ? and warns that employing biometric systems without sufficient attention to their dangers makes them likely to be used in a way that threatens civil liberties.

?When it comes to terrorism versus ordinary crime we have extremely sparse information on terrorism,? Tien said, ?There isn?t anything even remotely resembling a solid biometric list of known or suspected terrorists.?

Tien argues that such a system can facilitate the positive identification of someone who is not a terrorist, but adds, ?It?s no help with threat identification, where we have all the problems.?

That conclusion was also reached by the General Accounting Office.

Homeland Security's Murphy contends that biometrics ?back up the integrity? of travel documents and prevent alteration of machine-readable passports.

But the EFF argues that a terrorist with a fake passport would be issued a U.S. visa with his own biometric attached to the name on the phony passport.

?Unless the terrorist has already entered his biometrics into the database, and has garnered enough suspicion at the border to merit a full database search, biometrics won't stop him at the border,? said Tien.

Tien?s organization contends that biometrics do not represent a substitute for quality data about potential risks. No matter how accurately a person is identified, EFF argues, identification alone reveals nothing about whether a person is a terrorist. Such information is completely external to any biometric ID system.

The lack of a well-considered threat model has been a focus of the Electronic Frontier Foundation?s opposition to certain uses of biometrics.

Before deploying any such system on the national stage, EFF emphasizes that a realistic threat model must be obtained, specifying the categories of people such systems are supposed to target, and the threat they pose in light of their abilities, resources, motivations and goals.

?What if the terrorists don?t come in through the checkpoints?? asks Tien. ?How hard is it for a dedicated terrorist to get on shore if they want to??

He adds, that the notoriously porous Mexican border and the exemption of Canada from the program ?makes a mockery of the notion that this is for security.?

Although the excuse for exempting Canada was one of practicality vs. commerce concerns arising from feared traffic snarls, Tien chastised the government for failing to conduct adequate cost-benefit analyses.

Even Homeland Security's Murphy calls the press reports of potential traffic snarls and disrupted commerce along the Canadian border ?folklore.?

?It only adds about 4 seconds to processing time, since the document would be swiped as the border guard is asking questions they routinely ask anyway,? explained Murphy.

Ironically, Rep. John M. McHugh, R-NY, recently met with Delegate General Michel Robitaille of Quebec to discuss rising concerns about traffic snarls arising from the Canadian government?s apparent understaffing of New York border crossings, such as crossings at Champlain-Lacolle and Landsdowne.

At Champlain-Lacolle, a recent backlog of cars at the Canadian checkpoint can apparently be attributed to the availability of only one open inspection lane and the low number of Canadian inspection agents stationed at the border. The Canadian government is said to be planning significant upgrades at its border crossings, specifically in Lacolle

In addition to being ineffective and the Canadian-Mexican border leaks, Tien warns of the privacy threats of such a system.

?It becomes very easy to track innocent people,? he said. ?The government?s fragmented attempts to address physical security issues are resulting in ?solutions? that will be heavily sucking in data about people.?

Political pressure for increasing use of biometrics appears to be informed and driven more by marketing from the biometrics industry than by scientists, EFF asserts.

David Ray, spokesman for the Federation for American Immigration Reform, supports the program and the fingerprinting of Americans overseas.

?Visiting a country is a privilege, not a right,? Ray said, contending that such checks are a reasonable ?cost? of international travel.

Ray is also highly critical of the Canadian exemption though, calling it ?very risky.?

?Canada is known as a place where it?s easy to make asylum claims, and where persons with terrorist affiliations reside,? he said.

Asian smuggling rings operating in the Vancouver area, and the possibility of obtaining fake Canadian drivers? licenses were also cited as concerns.

?We?ve got 9 to 11 million illegal immigrants in the country that we know nothing about,? Ray said, ?There?s been no criminal background check of them, no running of their identities against a terrorist database. US officials are not very interested in detecting and deporting these people.?

?Iraq has more secure borders,? said Ray, ?That $87 billion should?ve gone to securing our borders before we spent a dime in Iraq.?

?We don?t seem to be able to lock our own back door. We?ll just be tracking people who want to play by the rules.?

At the Biometrics 2003 conference, Atick noted that the ?privacy pendulum? has shifted ?over the last two years,? and, that after Sept. 11, 80 percent of people polled supported biometrics and ID cards. He also noted the majority of privacy complaints were with the USA Patriot Act and its alteration of wire-tapping, subpoena and disclosure law.

Looking forward, Atick noted that building certain testing databases ?may require changes in law,? and he predicts that identity management with biometrics will keep the industry and government busy for the next decade.

Illustrating the close relationship between the biometrics industry and the U.S. government, Atick pointed out, ?Without NSA, DARPA, DOJ, NIST, etc. the biometric industry today would be a decade or two behind.?

So what does the biometrics industry expect from its relationship to government in the future?

According to Atick: ?Unwavering commitment to programs despite election-year politics.?

Wal-Mart customers who picked up lipstick off the shelf at a Broken-Arrow, Okla., store were part of a little-mentioned experiment earlier this year that tracked consumer habits using Radio Frequency Identification technology, or RFID.

Proctor & Gamble teamed with the retail giant in the test over a four month-period which allowed researchers to view the Wal-Mart shelves from company headquarters some 750 miles away in Cincinnati, according to the Chicago Sun-Times.

Also, the Max Factor Lipfinity lipstick had RFID tags hidden inside that allowed the inventory to be tracked leaving the shelves.

The Chicago paper said it was informed of the study by a disgruntled P&G employee.

Wal-Mart first denied the test, but then admitted it had allowed customers to be watched.

A P&G spokeswoman said a sign at the Lipfinity display "alerted customers that closed-circuit televisions and electronic merchandise security systems are in place in the store," the Sun-Times reported.

She insisted the system could only track lipstick leaving the shelves. Once the product was taken away, it would be out of range.

A privacy rights group, however, has called for mandatory labeling of the products with RFID chips.

"On the surface, the Broken Arrow trial may seem harmless," Katherine Albrecht, founder and director of Consumers Against Supermarket Privacy Invasion and Numbering, or CASPIAN, told the Sun-Times. "But the truth is that the businesses involved pushed forward with this technology in secret, knowing full well that consumers are overwhelmingly opposed to it."

As WorldNetDaily reported, Gillette, the nation's largest shaving-products manufacturer, planned to conduct a trial of RFID last summer at a Brockton, Mass., Wal-Mart store.

The plan called for Gillette to embed a tiny microchip in each of its products so store managers could track Gillette store stock and alert them if products were running low. Eventually, say critics, the technology could be used to literally track products from store shelves to homes.

However, according to the Washington Times, Wal-Mart abandoned its "smart shelf" experiment for the time being. Instead, the paper said, the retailer would incorporate RFID technology at each of its 103 distribution centers around the country to monitor inventory.

The decision, said the Times, came after Albrecht and CASPIAN called for a letter-writing campaign against Wal-Mart. But retailer spokesman Tom Williams denied that was the motivation for Wal-Mart changing its "smart shelf" plans.

"We didn't cancel anything. We just didn't follow through with this particular idea," he told the paper.

But the Times report said other large retailers, such as Target and Home Depot, were testing the RFID technology to monitor inventory in their storerooms and distribution centers.

Wal-Mart and the U.S. Department of Defense have been the biggest boosters of the technology.

At a global security conference held today in Paris, an American company announced a new syringe-injectable microchip implant for humans, designed to be used as a fraud-proof payment method for cash and credit-card transactions.

The chip implant is being presented as an advance over credit cards and smart cards, which, absent biometrics and appropriate safeguard technologies, are subject to theft, resulting in identity fraud.

In his speech today at the ID World 2003 conference in Paris, France, Scott R. Silverman, CEO of Applied Digital Solutions, called the chip a "loss-proof solution" and said that the chip's "unique under-the-skin format" could be used for a variety of identification applications in the security and financial worlds.

The company will have to compete, though, with organizations using just a fingerprint scan for similar applications.

The ID World Conference, held yesterday and today at the Charles de Gaulle Hilton, focused on current and future applications of radio frequency identification (RFID) technologies, biometrics, smart cards and data collection.

The company's various "VeriChips" are RFID chips, which contain a unique identification number and can carry other personal data about the implantee. When radio-frequency energy passes from a scanner, it energizes the chip, which is passive (not independently powered), and which then emits a radio-frequency signal transmitting the chip's information to the reader, which in turn links with a database.

ADS has previously touted its radio frequency identification (RFID) chips for secure building access, computer access, storage of medical records, anti-kidnapping initiatives and a variety of law-enforcement applications. The company has also developed proprietary hand-held readers and portal readers that can scan data when an implantee enters a building or room.

Verichip pocket reader

The "cashless society" application is not new ? it has been discussed previously by Applied Digital. Today's speech, however, represented the first formal public announcement by the company of such a program.

In announcing VeriPay to ID World delegates, Silverman stated the implant has "enormous marketplace potential" and invited banking and credit companies to partner with VeriChip Corporation (a subsidiary of ADS) in developing specific commercial applications beginning with pilot programs and market tests.

Applied Digital's announcement in Paris suggested wireless technologies, RFID development, new software solutions, smart-card applications and subdermal implants might one day merge as the ultimate solution for a world fraught with identity theft, threatened by terrorism, buffeted by cash-strapped governments and law-enforcement agencies looking for easy data-collection, and corporations interested in the marketing bonanza that cutting-edge identification, payment, and location-based technologies can afford.

Verichip

Cashless payment systems are now part of a larger technology development subset: government identification experiments that seek to combine cashless payment applications with national ID information on media (such as a "smart" card), which contain a whole host of government, personal, employment and commercial data and applications on a single, contactless RFID chip.

In some scenarios, government-corporate coalitions are advocating such a chip be used by employees also to access entry to their workplace and the company computer network, reducing the cost outlay of the corporations for individual ID cards.

Malaysia's "MyKad" national ID "smart" card is the foremost example.

Meanwhile, privacy advocates have expressed concern over RFID technology rollouts, citing database concerns and the specter of individuals' RFID chips being read without permission by people who have their own hand-held readers.

Several privacy and civil liberties groups have recently called for a voluntary moratorium on RFID tagging "until a formal technology assessment process involving all stakeholders, including consumers, can take place." Signatories to the petition include the American Civil Liberties Union, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Privacy International and the Foundation for Information Policy Research, a British think tank.

Commenting on today's announcement, Richard Smith, a computer industry consultant, referred to what some "netizens" are already calling "chipectomies": "VeriChips can still be stolen. It's just a bit gruesome when to think how the crooks will do these kinds of robberies."

Citing MasterCard's PayPass, Smith pointed out that most of the major credit-card companies are looking at RFID chips to make credit cards quicker, easier, and safer to use.

"The big problem is money," said Smith. "It will take billions of dollars to upgrade the credit-card networks from magstripe readers to RFID readers. During the transition, a credit card is going to need both a magstripe and an RFID chip so that it is universally accepted."

Some industry professionals advocate having citizens pay for combined national ID/cashless pay chips, which would be embedded in a chosen medium.

Identification technologies using RFID can take a wide variety of physical forms and show no sign yet of coalescing into a single worldwide standard.

Prior to today's announcement, Art Kranzley, senior vice president at MasterCard, commented on the Pay Pass system in a USA Today interview: "We're certainly looking at designs like key fobs. It could be in a pen or a pair of earrings. Ultimately, it could be embedded in anything ? someday, maybe even under the skin."

Don't kid yourself -- and don't let them kid you. When they come at you with that pious sugar, telling you how they're going to protect you, secure you, keep you free, you better run and check the back door ? because that's where their goons will be breaking in.

Last week, the U.S. Congress approved an expansion of FBI powers that will allow Attorney General John Ashcroft's federal police to arbitrarily seize records from a range of private businesses without bothering a judge or grand jury with any silly-billy nonsense about evidence or even suspicion of criminal intent. All Ashcroft's boys have to do is say, "Boo! Terrorism!" and they can take whatever they want.

This expansion of Patriot (sic) Act powers was smuggled into the funding bill for the Bush Regime's security organs. Although the FBI is technically under the supervision of the Judiciary committees, Bushist bagmen in Congress routed the measure through the secret sessions of the intelligence committees to avoid any public debate, Wired Magazine reports.

As usual, the power grab was accompanied by earnest pledges that it would only be used in the most extreme cases of genuine terrorist danger. This was also the line given out when the Patriot (sic) Act was first passed in 2001. Ashcroft -- who is so holy that he had his daddy pour cooking oil over his head after his 1994 election to the Senate to signify that he, like King David, had been anointed with the Lord's "dominion over men" -- solemnly swore that the draconian measures would never be applied to anything but dire threats to the national security.

This was, of course, the usual load of mule manure we've come to expect from the incontinently mendacious Regime. Witness the scene in Las Vegas this month, where Ashcroft's agents invoked the Patriot (sic) Act's anti-terrorism powers to run roughshod over due process in a local probe of a lap-dancing joint. The club owner was suspected of offering bribes to Vegas officials to win approval of a law allowing a more hands-on approach between dancers and customers, the Las Vegas Review-Journal reports. While the case had nothing to do with terrorism, obviously the very thought of naked flesh being fondled constituted a dire threat to the national security in Ashcroft's oily mind. And obviously, nothing will prevent Ashcroft and his minions from using the Act to pursue any other personal bee that's buzzing in their fully armed federal bonnets.

While Ashcroft's sexual anxieties are mildly amusing (last year he installed an $8,000 curtain to hide the wantonly bare breast of a statue at his Washington headquarters), there's a far more sinister side to this corrosion of America's few remaining liberties. For the very day after the Congressional rubberstamps gave their Viagra-like boost to the FBI's reach, another legislative committee released its report on "one of the greatest failures in the history of federal law enforcement" -- the FBI's eager participation in Mob murders, carried out with the full knowledge and approval of the highest levels of government, The New York Times reports

It began in the heyday of J. Edgar Hoover, the cross-dressing martinet who reigned supreme in Washington for decades, blackmailing presidents, wiretapping dissidents (his sex tapes of Martin Luther King Jr. were said to be a particular favorite) and generally playing merry hell with American liberties all across the board. In the 1960s, the FBI formed a partnership with a Boston gangland outfit, using its hitmen as informants to finger other gangs. It was a sweet deal for both parties: the Bureau got high-profile collars for its PR mill, and the gangsters got to knock off their enemies with the blessing -- and cover -- of the biggest "roof" around: the U.S. government.

Not only did the FBI cover for its pet killers; agents actually allowed four men to be convicted (two of them sentenced to execution) for a murder that Hoover knew had been committed by one of his "informants." Two of the innocent men died in prison; the others were freed after serving 30 years of hard time. In all, the FBI's informants murdered more than 20 people in Boston -- "often with the help of FBI agents," noted the Congressional report. And lest you think this blood work was just something from the "bad old days," consider this: the FBI-Mob death squad was still operative at least as late as 1995, when a helpful fed tipped off Boston's top mobster, Whitey Bulger, before he could be arrested by some nonmobbed cops. Whitey is still at large -- and presumably still enjoying the shelter of his trusty "roof."

And by the way, not a single FBI agent has ever been arrested -- or even disciplined -- for their part in this murderous enterprise.

So don't kid yourself that these new powers won't be abused. They will. Power -- the armed power of the state, the power over life, death and the liberty of the individual -- will always go just as far as you let it. It will trample every ethical and moral boundary, pour itself into every nook and cranny of life, public and private, seeking dominance at every level -- unless you maintain a rigorous system of checks and balances to balk the flow of power, frustrate it, channel it, disperse it, subject it to reason, humanize it.

But in the militarized, one-party state of Bushist America, where law is scorned and reason has fled, those restraints are being swept aside. The back door is wide open.

It seems that the United States military coup of 2012 has arrived about 10years early. Well, okay, not the full-fledged classic coup, led by a generalon horseback. But, as they say, close enough for government work.

First, more about that coup. In 1992, a then little-known deputy staff judge advocate lieutenant-colonel by the name of Charles J Dunlap Jr published an article titled "The Origins of the American Military Coup of 2012" (1) in the US Army War College's military journal Parameters. In a plot that was a cross between Arthur Koestler's Darkness at Noon and the movie The Siege, he depicted an America in which a military coup had taken place in the year 2012, and General Thomas E T Brutus, commander-in-chief of the Unified Armed Forces of the United States, occupies the White House as permanent military plenipotentiary. A senior retired officer of the military is one of those arrested, having been convicted by court-martial for opposing the coup. Prior to his execution, he discusses the origins of the coup, arguing that it was the outgrowth of trends visible as far back as 1992. These trends were the massive diversion of military forces to civilian use, the monolithic unification of the armed forces, and the insularity of the military community.

While Dunlap, now a brigadier-general at the Air Combat Command, has not weighed in on this recently, the last two trends have been evident for many years. The Goldwater-Nichols reforms passed by Congress in the 1980s greatly strengthened jointness among the traditionally separate armed forces and the increasingly conservative and republican nature of the armed forces, which is well documented by journalists and academics.

But a report in the November 23 Los Angeles Times by respected militaryaffairs analyst William Arkin provides the latest evidence that thesupposedly inviolate wall keeping the military out of traditional civilianactivities is eroding, due the diversion of the military to civilianmissions.

That wall is embodied in the US by the 1878 Posse Comitatus Act, enacted to preclude federal troops from doing the bidding of local politicians in the occupied South following the Civil War. It prohibits the military from conducting domestic law enforcement operations. Congress wanted to make it crystal clear, as Richard Nixon might have said, that there is a great difference in a democracy between protecting our nation from foreign attack and policing our neighborhoods. But the law also allows Congress and the president to make exceptions, and over the years they have done so.

They did so notably in the 1980s in the Ronald Reagan era when the USmilitary was dragged kicking and screaming into counter-drug operations.Ironically, then defense secretary Caspar Weinberger wrote in 1985,"Reliance on military forces to accomplish civilian tasks is detrimental toboth military readiness and the democratic process."

On May 20, 1997, a Marine anti-drug squad stalked, shot and allowed to bleed to death Ezequiel Hernandez, an 18-year-old high school sophomore, while he was herding goats near his home in Redford Texas, near the Rio Grande River, the site of heavy military drug interdiction activity. Hernandez's death was the first fatal shooting of a US civilian since the military began anti-drug missions in the 1980s and is the first American killed by soldiers on US soil since the 1970 National Guard killings of four students at Kent State during anti-Vietnam War demonstrations.

In fact, Congress already has passed several laws relaxing the strictures of the act in order to deal with potential attacks on American soil. In 1997,Congress gave the Pentagon authority to cooperate with the JusticeDepartment in responding to biological or chemical attacks. Another lawgives the president authority in an emergency to use the armed forces toperform work "essential for the preservation of life and property". Another allows military personnel to assist the Justice Department in collecting intelligence or conducting searches and seizures if "necessary for the immediate protection of human life". Section 104 of the USA Patriot Act passed last year further authorizes the emergency use of the military in "case of attack with a weapon of mass destruction".

Taken together, all these measures give the president authority to use themilitary in most conceivable emergency situations. But after the September 11, 2001 attacks, the Pentagon picked up extra responsibilities focused on preventing future terrorist attacks on US soil. US Air Force pilots were and are now authorized to shoot down commercial airliners, if necessary. The Air National Guard flew thousands of combat air patrols (Operation Noble Eagle)over major American cities

Some US military officials want to put unmanned aerial vehicles in the skies above the continental US to conduct surveillance and intelligenceoperations. The North American Aerospace Defense Command wants to use a high-altitude airship to detect cruise missiles and monitor vessels and other potential threats approaching the continent.

Initially, the Pentagon expanded the role of the US Joint Forces Command(JFCOM), giving it additional authority to coordinate and deploy militaryforces to fight terrorism in the continental US. The commander was placed in charge of the land and maritime defense of the continental US, as well as providing military assistance to civil authorities. JFCOM already was responsible for providing support to civilian authorities responding toattacks or disasters, and for planning the land and maritime defense of the continental US. Now, it would also have the power to deploy military forces domestically to fight terrorism and defend the homeland, an authority previously left to the defense secretary.

But this was deemed unwieldy, and thus led to the creation of the Northern Command, an organization that consolidates all existing military homeland defense and security operations. Concerns about possible violations of the Posse Comitatus Act caused Congress, in the 2002 Defense Authorization Act, to "conduct a study on the appropriate role of the Department of Defense with respect to homeland security".

Last year, however, the Bush administration's Homeland Security strategydocument said: "The threat of catastrophic terrorism requires a thoroughreview of the laws permitting the military to act within the United Statesin order to determine whether domestic preparedness and response efforts would benefit from greater involvement of military personnel and, if so, how."

Since then the Defense Department also has been inserted into two veryvisible new agencies. It transferred about 50 new employees in the newDepartment of Homeland Security to the White House's newly formed Terrorist Threat Integration Center, which is designed to make sure the Central Intelligence Agency, the Pentagon, the Department of Homeland Security and the Federal Bureau of Investigation share information.

At Homeland Security's United States Northern Command (Northcom)headquarters at the Peterson Air Force Base in Colorado Springs, more than 200 people will be engaged in gathering domestic intelligence, receiving information from local and state police as well as US intelligence agencies.

But as Arkin's article makes clear, Northcom is doing more than merecoordinating. "Under the banner of 'homeland security', the military andintelligence communities are implementing far-reaching changes that blur the lines between terrorism and other kinds of crises and will break downlong-established barriers to military action and surveillance within theUS."

According to Arkin, Northcom has defined three levels of operations, each of which triggers a larger set of authorized activities. The levels are"extraordinary", "emergency" and "temporary". During emergencies, themilitary can provide similar support, mostly in response to specific eventssuch as the attacks on the World Trade Center. It is only in the case ofextraordinary domestic operations that the unique capabilities of theDefense Department are deployed. These include not just such things as air patrols to shoot down hijacked planes or the defusing of bombs and other explosives, but also bringing in intelligence collectors, special operators and even full combat troops.

Some say this is nothing new. In a speech to the Council on ForeignRelations in January, former US senator Gary Hart said American founders "created such an army and called it the militia: citizen-soldiers under the immediate command of the various states that can be deployed in times of emergency. Since the late 19th century these militias have been known as the National Guard, and they were created and given constitutional status as the first responders and the first line of defense in the case of an attack on our homeland".

Indeed, on December 2 Paul McHale, former Democratic congressman and now the Defense Department's assistant secretary for homeland defense, said at the Defense Manufacturing Conference in Washington that military studies of potential domestic terrorist attacks have determined that the National Guard should not only protect the defense industrial base but also critical infrastructure that has previously been defended by civilian law enforcement agencies.

In the future, the National Guard will be the lead organization thatcoordinates military and civilian responses to terrorist threats and attacksagainst some critical infrastructure, such as nuclear power plants, McHalesaid.

He also said the Pentagon reviewed the Posse Comitatus Act and determined that it would not be a violation to deploy the National Guard to protect critical infrastructure in some circumstances. He said he expects more presidential directives in the future to expand the military's homeland defense role.

But the same basic concerns about military involvement still remainrelevant. From a civil liberties viewpoint, while members of the armedforces take an oath to uphold and defend the constitution, they are nottrained, like the police, to uphold Americans' rights to privacy and dueprocess. Civil libertarians' fears about due process have been heightenedsince September 11 by the indefinite detention of citizens and immigrants,and by proposals to try them before secret military tribunals.

I write this dutifully and joylessly in the manner of someone taking out the garbage or performing some other unpleasant task that's been done before but which must be done once more.

The Republicans have done it again. With their new Medicare bill, they've made government even bigger. This is not new to us here. We've been saying that for years. The Republicans have been expanding the size, scope and power of government ever since they first got their mitts on power in 1861. Their Civil War set the blueprint for modern America, according to liberal historian James McPherson. In modern America, unrestrained democracy?of the greedy people, by the greedy people, and for the greedy people?leads special interest groups to continually expand the size of the state for their own benefit and everyone else's loss. Does any intelligent person not know this by now?

The Rushians and the Republican rank and file apparently do not know it. Why? They confuse talk and action. Republican politicians do speak the language of individual freedom and free markets and limited government. Most regular folks don't have the time or energy or money to hang out in the Republican hacks' palatial digs on Capitol Hill to see if their heroes actually do what they've promised. (They don't.)

This explanation is not enough, however. There are just too many examples of Republican sell-outs and cop-outs and logrolling over liberty. Reagan failed to cut the two useless departments he promised to cut. The 1994 "revolution" of Newt and the Gang was a flop. Yes, but we needed to get control of all three branches of government. Okay, you did that in 2002. What's your excuse now? The federal government is bigger than ever; its debt is colossal; the U.S. is in two wars; and there isn't even talk of abolishing HUD, the textbook example of a corrupt, destructive and unlawful federal agency.

There must be something that keeps the troops anteing up their votes and legwork and contributions to the mendacious Republican machine. There is. Hillary was right. There is a vast, right-wing conspiracy to whip up hatred of liberal Democratic icons like Bill and Hillary primarily for their personal peccadilloes. My response to most of the Clinton scandals? A big yawn. What politicians do in broad daylight is much worse than what they do at night or behind closed doors.

Yet, the Republican hacks can hardly talk about issues. They just did what we were supposed to fear from the Billary?they socialized medicine even further. Talk about scandals and side-issues like burning the flag, is designed to cloud the minds of the Rushians with emotions that blind them to the disingenuousness of the Republican elite. And it works! It looks like the Republicans will retain control of their beloved federal government once more.

Here's the key to the scam. All things being ideal, the Republicans actually would make small cuts in government. Things are never ideal, though. The Republicans always worry that if they cut government, they will lose votes from the special interest groups. That would bring on the worst of all possible worlds: people in charge who, like the Republicans, also support and nurture big government, but are called "Democrats". Horrors. Check out of the Russell palace and go back to Palookaville? No way, no how! If any of the troops disagree, Hammer 'em!

Now, I know what the hacks will say in response. That fella doesn't know how Washington works. We just need to get a lock on power for another four years, and then we'll lower the boom on big government. But I do understand, fellas. I've been watching you guys for 25 years. As I said previously about George Pataki, you have sold out for the same reason that Republicans usually sell out: yes, you would like to make government smaller, but your desire to stay in power is larger.

Your medical information is safe and protected in your doctor's or hospital's files.

Right?

Your financial information and records are protected by your bank, according to legal safeguards.

Right?

Your tax returns are private and privileged information between you and your tax preparer and the IRS.

Right?

Are you sure?

The truth is, there's no way to be certain.

Two recent incidents in the San Francisco area are enough to put the fear of God in you and more than enough to give corporate executives severe heartburn or worse ? they deserve worse.

In November, the office of a Bay Area business consultant was robbed. The thief broke into the building, but the consultant's office door had been left unlocked. It was an easy heist of the computer and decorative items. Other offices weren't touched.

It first appeared to be a routine burglary until police learned that the stolen computer contained the names, addresses, social-security numbers and financial information of hundreds of thousands of Wells Fargo Bank customers, nationwide. The potential for stolen identities and worse, if there is worse, was beyond imagining.

Fortunately, the thief was caught relatively quickly when officials tracked his Internet surfing on the computer. At the man's apartment, police found the stolen items, along with piles of stolen drivers licenses and other such documents. It seems the guy had a nifty business making and selling fake ID's. Whether he did anything with the bank's confidential information hasn't been revealed.

But the real issue is why highly confidential financial information and files of banking customers were given to an outside consultant to be stored on his own computer.

Wells Fargo publicly expressed concern about the theft and notified customers by letter of measures taken to protect them from possible security problems.

However, the bank hasn't said what the consultant was doing with all that confidential information, nor has it explained why he was allowed to store the information away from secure bank premises.

Think that's bad? How about this? In October, officials at the University of California San Francisco Medical Center got an e-mail extortion threat. It essentially said, be certain I get paid properly for my work or all your patient medical records and voice files will be put on the Internet.

The information in question would include all patient records from the UCSF Mt. Zion and the Parnassus facilities. That's a lot of confidential data.

If that wasn't bad enough, the person making the threat was a woman in Pakistan! How would she get private medical records?

It turns out that for years, the hospital had farmed out medical transcription work locally. But the local subcontractor had a lot of work, so they subbed it out to more than 15 others, who in turn, subbed again. Ultimately that work went offshore and that meant trouble.

One woman claimed she hadn't been paid and put pressure where it would get attention. It did. She got her money, but the problem remains. Or at least the medical center hasn't announced that it changed its ways.

Offshore work isn't unusual. Tech help for computers routinely is done in India or Pakistan, or other countries. The key is an educated, skilled, English-speaking and lower-wage work force.

Tech help is one thing, but medical or financial records is another. However, bottom line: It's money. That comes first, apparently even before the confidentiality of your private information.

I talked with David Lazarus, business columnist for the San Francisco Chronicle, who broke the medical story in his column and then followed with his investigation of the banking story. But he told me another which caused my blood to boil.

According to him, some accounting firms are sending tax-return preparation offshore. He said the number doing it is growing by leaps and bounds. According to his research, individual tax preparers are also getting involved in outsourcing the preparation of your federal and state tax returns. Even worse, there's an indication the IRS might do the same with some of its work. How about that!

Would you know? Probably not. Are you told? Probably not. Do you really think they'd tell you the truth. I doubt it. In fact, would your accountant know if his domestic outsourcing were subbed offshore? Probably not ? UCSF didn't, and they're big enough to know.

It appears we're all guinea pigs in a worldwide privacy invasion. While liberals and malcontent conservatives wail about the so-called privacy invasions of the Patriot Act, we've already been sold out by financial and medical institutions (and who knows what others) we've trusted.

Editor's note: WorldNetDaily is pleased to have a content-sharing agreement with Insight magazine, the bold Washington publication not afraid to ruffle establishment feathers. Subscribe to Insight at WorldNetDaily's online store and save 71 percent off the cover price. By John Berlau? 2003 Insight/News World Communications Inc.

It was widely reported as an outrage, a use of the USA PATRIOT Act by the puritanical Attorney General John Ashcroft and his Justice Department to go after a crime that had nothing to do with terrorism.

FBI agents conceded using Title III, the section of the USA PATRIOT Act that covers money laundering, in Operation G-string ? an investigation of corruption allegations against a strip-club owner in Las Vegas. The agents used Section 314 to seize the financial records of local elected officials the FBI thought might have taken money from the owner.

That section allows the government to conduct wide-ranging searches of "financial institutions" in cases involving suspected "terrorist acts or money laundering." And the "or" apparently is the key word in this case.

Rep. Shelley Berkley, D-Nev., whose district includes Las Vegas, expressed anger about the use of these provisions in a case in which the FBI conceded terrorism was not involved. In a letter to Ashcroft, Berkley wrote, "In my opinion, the use of the PATRIOT Act in this context violates both the spirit and intent of this important legislation." She asked Ashcroft for a "full explanation of your views on the scope of the PATRIOT Act and other investigative areas [in which] you foresee using the PATRIOT Act in the future."

But other critics of the action say that, if Berkley really were concerned with the scope of the USA PATRIOT Act's Title III, she'd be better off addressing questions to members of her party in the U.S. Senate who wrote the money-laundering provisions and who insisted they be attached to the final bill. Sen. Paul Sarbanes, D-Md., then chairman of the Senate Banking Committee, simply had tweaked a draconian money-laundering proposal already in the drawer before Sept 11.

After 9-11, Republican House leaders and the Bush administration wanted it considered only as separate legislation but, as confirmed by a LexisNexis database search of this period, Democrats were adamant that it be attached to the USA PATRIOT Act. To do otherwise is "just something we cannot accept," then Senate majority leader Tom Daschle, D-S.D., was quoted as saying in October 2001 by The Hill newspaper.

Sen. John Kerry, D-Mass., now campaigning for president and vigorously criticizing the USA PATRIOT Act and Ashcroft, complained at the time that Republicans were trying to remove the money-laundering provisions "by fiat." An October 2001 Associated Press article quoted Kerry as declaring, "This is not a moment for politics as usual to rear its ugly head in the Capitol." The article noted that Kerry "underlined the political influence of Texas bankers."

The senatorial offices of Daschle, Sarbanes and Kerry did not return Insight calls asking for their views about the nonterrorism uses of the USA PATRIOT Act provisions they championed, and neither did Kerry's presidential campaign.

Newsmax.com reporter Wes Vernon has written that Daschle and Sarbanes did not answer his inquiries about their roles in creating this part of the act either.

"I don't blame this on Ashcroft at all," says David B. Smith, who serves on the Money Laundering Task Force of the National Association of Criminal Defense Lawyers, or NACDL. When it comes to their populist causes many Democrats, Smith says, "have no appreciation for civil liberties, and they consistently are on the side of the government, more so than the most conservative Republicans in the House and the Senate." And money laundering, Smith and others note, is a populist issue that such Democrats use to bash business and "the rich."

Yet, in comparison to other USA PATRIOT Act provisions, the money-laundering provisions may be the most intrusive and costly, say experts. These provisions encourage the Treasury Department to mandate broad "know-your-customer" surveillance requirements not just for banks but also auto dealers, jewelry stores, travel agents and other businesses that earlier statutes put under a broad definition of "financial institutions."

The financial-services research firm Celent Communications estimates that for banks, securities dealers and insurance companies alone, compliance with the regulation will cost $10.9 billion by the end of 2005.

David Aufhauser, then general counsel of the Treasury Department, candidly admitted to the Washington Post in 2002 that "the PATRIOT Act is imposing a citizen-soldier burden on the gatekeepers of financial institutions." But he defended the provisions, saying that, "in many respects, they are in the best position to police attempts by people who would do ill to us in the U.S. to penetrate the financial systems."

But the costly mandates are not just being used for terrorism cases. Newsweek reporter Michael Isikoff found that two-thirds of the financial records obtained through the same Section 314 of the USA PATRIOT Act used in the strip-club cases "were in money-laundering cases with no apparent terror connection." Among the government divisions making requests were the IRS, the U.S. Postal Service and the Agriculture Department in "a case that apparently involved food-stamp fraud," he wrote.

Paul Rosenzweig, a former Justice Department official in the administrations of Ronald Reagan and George H.W. Bush and who now is an adjunct professor at George Mason University Law School and a senior legal research fellow at the conservative Heritage Foundation, has defended many USA PATRIOT Act provisions as necessary to combat terrorism. But he says the strip-club case and Isikoff's statistics, if they are true, show that law enforcement is in danger of "mission creep" which could undermine public confidence and even jeopardize the war on terrorism.

"If that's true, and it proves to be a long-term trend, it would be unfortunate," Rosenzweig tells Insight. "If we're using the new terrorism money-laundering laws to broaden our tax-cheat powers, that would be a mistake."

Justice Department spokesman Mark Corallo says although the Ashcroft team didn't ask for the anti-money-laundering powers, it will use them whenever feasible to fight crime.

"We don't believe we ought to be tying our hands behind our backs and saying, 'We can go after terrorists, but we can't go after drug dealers or other criminals.' That's silly," Corallo tells Insight. "If these provisions are good enough to go after terrorists, they're good enough to go after drug dealers and child molesters."

But critics warn that some prosecutors are defining the term very broadly.

Radio commentator Rush Limbaugh, for instance, reportedly is being investigated by Palm Beach, Fla., authorities for "structuring" ? that is, withdrawing money from his bank accounts just below the $10,000 threshold under which banks are required to report cash transactions to the government. There are provisions against "structuring" in both federal and Florida money-laundering laws.

"I was not laundering money," Limbaugh said on his radio show in November, just after coming back from treatment for addiction to prescription pain pills. "I was withdrawing money, for crying out loud!"

That doesn't matter, says Charles Intriago, publisher of the Money Laundering Alert newsletter, and it also doesn't matter for what Limbaugh was withdrawing his money.

"He could have gone out and bought rosaries for Mother Teresa's convent," Intriago tells Insight. "It doesn't matter what he was doing with the money; the crime is in the structuring." Intriago, a former federal prosecutor, says if the allegations are true Limbaugh could and should be prosecuted for structuring.

"The United States government decided that it's of extremely high value for the enforcement agencies of the United States to have reports that are filed reflecting the withdrawal or deposit of more than $10,000. ... Therefore, the public policy of the United States as reflected in the law that President Reagan signed is that it should be made a crime for people to structure their transactions to avoid or evade the filing of that form."

But Edwin Meese, who was attorney general in the mid-1980s when Reagan signed the Money Laundering Control Act of 1986 that made money laundering a federal crime, tells Insight the Limbaugh case appears to be just one more example of prosecutorial overreach with money-laundering laws. Meese, now director of the Center for Legal and Judicial Studies at the Heritage Foundation, says, "I think there have been instances in which money-laundering laws have been used in circumstances that are considerably different from the original intent of the law. When money-laundering statutes are used simply to pile on charges where major financial manipulation was not the intent nor was it related to syndicated crime, then I think the statutes would be misused."

The laws, Meese says, were pushed to "specify a certain type of aiding and abetting" in drug and crime rings. And indeed they often are used to go after people whom many agree are genuine bad guys. But in those cases it's usually one of several criminal charges filed.

In the indictment of American Muslim Council founder Abdurahman Alamoudi, who is alleged to have helped fund terrorism, a structuring charge is included with several others, including smuggling cash and violating sanctions by taking money from terrorist-sponsoring Libya.

But there also are increasing numbers of prosecutions in which a money-laundering charge appears to be added just to beef up cases where the underlying charges are minor, say critics. In a case to which Meese points that now is on appeal to the Supreme Court, money-laundering charges were added to the weak "environmental-crime" case of David McNab. The fisherman was charged in 2000 with violating the Lacey Act, which makes it a crime to "import fish or wildlife taken in violation ... of any foreign law."

The foreign law in question was a Honduran regulation that made it a crime to harvest lobsters with tails less than 5.5 inches long. While Honduran government officials testified that the law actually was null and void, and only about 3 percent of McNab's lobsters had tails less than 5.5 inches, prosecutors somehow convinced the courts that McNab's depositing of the proceeds of this "crime" in his bank account constituted money laundering.

Heritage's Rosenzweig and civil-liberties groups, such as NACDL, have signed a letter urging the Supreme Court to hear the case and free McNab, who has spent the last four years in prison. (The Justice Department had no comment on McNab's case.)

And, say critics, the USA PATRIOT Act's Title III will catch more McNabs, while doing little to catch terrorists, by demanding that even more businesses defined as "financial institutions" act like police spies. Treasury's Financial Crime Enforcement Network, which runs a database accessible to various domestic and foreign law-enforcement agencies, already has applied customer-monitoring requirements originally drafted for banks to "money-service businesses," which include the Postal Service as well as small convenience stores that offer money orders and smart cards, and brokerage houses. It has put out drafts of rules for real-estate brokers, travel agents and car dealers.

Most contentious are proposed requirements that these businesses not only must report transactions above a certain dollar threshold, but also file "suspicious-activity reports" on customers who deviate from a certain pattern.

"One of the things I worry about is that sometimes people buying cars do a lot of odd things," says Greg Lanker, president and co-owner of Acura of Modesto [Calif.]. "Most of the reason is they're trying to get a good deal. They try all kinds of tricks and trades, and sometimes their behavior is quite strange. For us to interpret what is strange and what is criminal is sometimes a little difficult."

Critics say businesses will have an incentive to overreport because of the criminal and civil penalties in the USA PATRIOT Act. In 2002 alone, more than 300,000 suspicious-activity reports were filed, in addition to the more than 12 million reports for currency transactions above the threshold.

Rachel Ehrenfeld, author of Funding Evil and other books on money laundering, says that criminals and terrorists launder money in a variety of ways and reports from a variety of businesses are crucial. While she says the Limbaugh case is "an abuse," she maintains innocent people have little reason to worry about their transactions being reported to the government.

"We need all the information we can get" to stop the terrorists, she says. "It is our lives that we are talking about, and it's time that the American people understand this. If you have legitimate money, you shouldn't be concerned about the government knowing how much money you have. I'm not concerned."

But Bruce Schneier, author of Beyond Fear and founder of Counterpane Security, a Silicon Valley-based technology-security consulting firm, says that even if the government were using the programs exclusively for fighting terrorism, the millions of reports would be incredibly difficult to sift through to sort out the real terrorists.

"A nation of spies will catch some bad guys but will also catch an enormous number of good guys," he tells Insight. "Investigations from false alarms will be enormous, and the false-alarm rate will likely be overwhelming."

And since criminals often are familiar with money-laundering laws and how to get around them, they likely will find ever more ingenious ways of hiding money. This could lead to even more businesses potentially caught in money-laundering schemes, and calls for more financial-reporting requirements from ever more types of business establishments, Schneier says. "You have to look at trade-offs, and broad surveillance measures just don't give a good return," he says.

What likely will give a better return is human intelligence, Schneier and others say.

"Take the millions you would have to spend to get these programs working and fund more FBI agents," he says. After all, it was old-fashioned interrogations that finally led to the capture of Saddam Hussein in his hole.

Better targeting of money-laundering laws for serious crimes and reducing surveillance requirements for businesses dealing with customers not suspected of any crime likely would lead to law enforcement using resources more effectively, Rosenzweig says.

"Nobody at Heritage doubts the need for enhanced data information to track and trace terrorist funds," he says. "But the problem is you don't really need to get information from auto dealers to do that."

On December 13, when U.S. forces captured Saddam Hussein, President George W. Bush not only celebrated with his national security team, but also pulled out his pen and signed into law a bill that grants the FBI sweeping new powers. A White House spokesperson explained the curious timing of the signing - on a Saturday - as "the President signs bills seven days a week." But the last time Bush signed a bill into law on a Saturday happened more than a year ago - on a spending bill that the President needed to sign, to prevent shuttng down the federal government the following Monday.

By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA Patriot Act to a mere footnote. Consequently, while most Americans watched as Hussein was probed for head lice, few were aware that the FBI had just obtained the power to probe their financial records, even if the feds don't suspect their involvement in crime or terrorism.

By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA Patriot Act to a mere footnote.

The Bush Administration and its Congressional allies tucked away these new executive powers in the Intelligence Authorization Act for Fiscal Year 2004, a legislative behemoth that funds all the intelligence activities of the federal government. The Act included a simple, yet insidious, redefinition of "financial institution," which previously referred to banks, but now includes stockbrokers, car dealerships, casinos, credit card companies, insurance agencies, jewelers, airlines, the U.S. Post Office, and any other business "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters."

Congress passed the legislation around Thanksgiving. Except for U.S. Representative Charlie Gonzalez, all San Antonio's House members voted for the act. The Senate passed it with a voice vote to avoid individual accountability. While broadening the definition of "financial institution," the Bush administration is ramping up provisions within the 2001 USA Patriot Act, which granted the FBI the authority to obtain client records from banks by merely requesting the records in a "National Security Letter." To get the records, the FBI doesn't have to appear before a judge, nor demonstrate "probable cause" - reason to believe that the targeted client is involved in criminal or terrorist activity. Moreover, the National Security Letters are attached with a gag order, preventing any financial institution from informing its clients that their records have been surrendered to the FBI. If a financial institution breaches the gag order, it faces criminal penalties. And finally, the FBI will no longer be required to report to Congress how often they have used the National Security Letters.

Supporters of expanding the Patriot Act claim that the new law is necessary to prevent future terrorist attacks on the U.S. The FBI needs these new powers to be "expeditious and efficient" in its response to these new threats. Robert Summers, professor of international law and director of the new Center for Terrorism Law at St. Mary's University, explains, "We don't go to war with the terrorists as we went to war with the Germans or the North Vietnamese. If we apply old methods of following the money, we will not be successful. We need to meet them on an even playing field to avoid another disaster."

"It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see." Robert Summers

Opponents of the PATRIOT Act and its expansion claim that safeguards like judicial oversight and the Fourth Amendment, which prohibits unreasonable search and seizure, are essential to prevent abuses of power. "There's a reason these protections were put into place," says Chip Berlet, senior analyst at Political Research Associates, and a historian of U.S. political repression. "It has been shown that if you give [these agencies] this power they will abuse it. For any investigative agency, once you tell them that they must make sure that they protect the country from subversives, it inevitably gets translated into a program to silence dissent."

Opponents claim the FBI already has all the tools to stop crime and terrorism. Moreover, explains Patrick Filyk, an attorney and vice president of the local chapter of the ACLU, "The only thing the act accomplishes is the removal of judicial oversight and the transfer of more power to law enforcements agents."

This broadening of the Patriot Act represents a political victory for the Bush Administration's stealth legislative strategy to increase executive power. Last February, shortly before Bush launched the war on Iraq, the Center for Public Integrity obtained a draft of a comprehensive expansion of the Patriot Act, nicknamed Patriot Act II, written by Attorney General John Ashcroft's staff. Again, the timing was suspicious; it appeared that the Bush Administration was waiting for the start of the Iraq war to introduce Patriot Act II, and then exploit the crisis to ram it through Congress with little public debate.

The leak and ensuing public backlash frustrated the Bush administration's strategy, so Ashcroft and Co. disassembled Patriot Act II, then reassembled its parts into other legislation. By attaching the redefinition of "financial institution" to an Intelligence Authorization Act, the Bush Administration and its Congressional allies avoided public hearings and floor debates for the expansion of the Patriot Act.

Even proponents of this expansion have expressed concern about these legislative tactics. "It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see," says St. Mary's Professor Robert Summers.

The Bush Administration has yet to answer pivotal questions about its latest constitutional coup: If these new executive powers are necessary to protect United States citizens, then why would the legislation not withstand the test of public debate? If the new act's provisions are in the public interest, why use stealth in ramming them through the legislative process?

?San Antonio Current 2003------------------------------------------

And a rejoinder thereto:

<< On December 13, when U.S. forces captured Saddam Hussein, President George W. Bush not only celebrated with his national security team, but also pulled out his pen and signed into law a bill that grants the FBI sweeping new powers. >>

1. Bush signed the bill before he knew of Saddam's capture. The raid did not occur until 12 noon EST. The first reports of his possible capture did not reach Bush until 3 PM EST. SH's identity was not confirmed until 5 AM on December 14th.

2. NSL's are not search warrants. Also, the NSL is a letter that instructs the records' custodian not to notify you of the search of their records about you. The law enforcement agency still needs probable cause to search those records; and, the custodian of the records can require a judicially reviewed search warrant before consenting to that search.

3. TV Example - On Law & Order, Det. Lenny Briscoe asks the phone company for the Lugs on a certain phone number. The phone company gives Briscoe a list of every number that made a call to the phone number in question as well as a list of every number called by that number. If Lenny also served an NSL on the phone company, the phone company would be prohibited from telling the holder of that phone number that the police requested info on that number.

4. But, folks, the FBI and State law enforcement have always been able to execute a search warrant on your bank, your securities broker, or your telephone company and obtain information about your finances or phone records without having to notify you before or after the fact. Nor has your financial institution ever been required to notify you after the fact of any warrants executed against a broker's records of your transactions with that broker.

5. Why? Because the bank's, broker's or phone company's records are their records - not yours. Also, if they were your records, the 4th Amendment protects YOUR person and property against "unreasonable" searches and seizures without warrants.

Now, I'm not here to advocate the elimination of the probable cause requirement. However, I'm here simply to point out the facts about NSL's and records that other people have about transactions that occurred through them or with them. When you engage in those type of transactions, you are giving up the absolute right to privacy of your dealings.

NEW ORLEANS -- It's a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will provide safety to officers, but others argue it's a privilege that could be abused.

The decision was made by the New Orleans-based 5th Circuit Court of Appeals. Two dissenting judges called it the "road to Hell."

The ruiling stems from a lawsuit filed in Denham Springs in 2000.

New Orleans Police Department spokesman Capt. Marlon Defillo said the new power will go into effect immediately and won't be abused.

"We have to have a legitimate problem to be there in the first place, and if we don't, we can't conduct the search," Defillo said.

But former U.S. Attorney Julian Murray has big problems with the ruling.

"I think it goes way too far," Murray said, noting that the searches can be performed if an officer fears for his safety -- a subjective condition.

Defillo said he doesn't envision any problems in New Orleans, but if there are, they will be handled.

"There are checks and balances to make sure the criminal justce system works in an effective manor," Defillo said.

Is Military CreepingInto Domestic SpyingAnd Enforcement?By ROBERT BLOCK and GARY FIELDS Staff Reporters of THE WALL STREET JOURNAL

In a little-noticed side effect of the war on terrorism, the military is edging toward a sensitive area that has been off-limits to it historically: domestic intelligence gathering and law enforcement.

Several recent incidents involving the military have raised concern among student and civil-rights groups. One was a visit last month by an Army intelligence agent to an official and students at the University of Texas law school in Austin.

The agent demanded a videotape of a recent academic conference at the school so that he could identify what he described as "three Middle Eastern men" who had made "suspicious" remarks to Army lawyers at the seminar, according to the official, Susana Aleman, the dean of student affairs.

The Army, while not disputing that the visit took place, declined to comment, saying the incident is under investigation.

Last year, the Office of Naval Intelligence, the nation&s primary source of global maritime intelligence, demanded access to the U.S. Customs Service&s database on maritime trade, saying it needed information to thwart potential terrorist activity. Customs officials initially resisted the Navy&s demands but eventually agreed to give naval intelligence much of what it wanted.

In an interview earlier this month, U.S. Customs and Border Protection chief Robert C. Bonner said he shares data only after getting Navy assurances that the information won&t be abused. Navy spokesman Jon Spiers says the Office of Naval Intelligence first approached customs about sharing inbound foreign cargo information in December 2002, and he denies there is anything improper about the request. The agency "has not overstepped any authority or crossed the line dividing law enforcement from military operations," he says.

Lt. Spiers adds that when the Navy&s top spy agency gains access to data about American companies and individuals, the information will be "subjected to a meticulous legal review" and will be retained only if it is directly related to the agency&s mission to identify potential foreign threats.

In another sign of military interest in domestic information-gathering, the Defense Intelligence Agency&s new antiterrorism task force is looking to share information with law-enforcement officials in California and New York City, according to an August 2003 General Accounting Office report.

Historically, Americans haven&t trusted the military to do domestic police work. The 1878 Posse Comitatus Act, passed in response to abuses by federal troops in the South after the Civil War, prohibits the use of the military "to execute the laws" of the U.S. That&s been widely interpreted as a ban on searching, arresting or spying on U.S. civilians by federal troops.

But the law has been violated, notably during the Vietnam War, when Army operatives spied on antiwar activists on campuses. Meanwhile, Congress has eased the law&s limits to allow the military to help prosecute the war on drugs.

After the Sept. 11 attacks, the White House sought to further loosen restrictions to allow the military to take on a new domestic-security role. It has mostly been rebuffed. In May the House refused to approve a White House-backed proposal to give the Central Intelligence Agency and the military authority to scrutinize personal and business records of U.S. citizens. And the Senate last year blocked funding for a Pentagon project known as the Total Information Awareness program, which was supposed to collect a vast array of information on individuals, including medical, employment and credit-card histories.

The issue of an expanding military role in domestic affairs also surfaced last year with the Pentagon&s creation of the Northern Command, or Northcom, based in Colorado Springs, Colo. The new command, the first such military command designed to protect the U.S. homeland from a terrorist attack, has responsibility for the U.S., Canada, Mexico, portions of the Caribbean and U.S. coastal waters. Northcom&s commander, Gen. Ralph "Ed" Eberhart, is the first general since the Civil War with operational authority exclusively over military forces within the U.S.

Gen. Eberhart has stoked concern among civil-liberties advocates by saying that the military and civilians should be involved in developing "actionable intelligence" for the government. In September 2002, he told a group of National Guardsmen that the military and the National Guard should "change our radar scopes" to prevent terrorism. It is important to "not just look out, but we&re also going to have to look in," he said, adding, "we can&t let culture and the way we&ve always done it stand in the way."

Northcom officials and other military leaders play down his remarks. "No one ran out after that speech and started snooping," one official says. Gen. Eberhart echoed that last September on PBS&s "News Hour": "We are not going to be out there spying on people, " he said, though he added, "we get information from people who do."

Further evidence of the blurring of the lines between the civilian and military worlds comes in a job-vacancy notice for a senior counterintelligence advisor to Northcom. The duties, according to the notice, include providing advice that goes beyond potential terrorism to include "other major criminal activity, such as drug cartels and large-scale money laundering" -- work usually under the purview of the Drug Enforcement Administration, the Federal Bureau of Investigation and the Secret Service.

Another little-known Pentagon group, the Counterintelligence Field Activity, was set up two years ago. With 400 service members and civilians stationed around the globe, the CIFA was originally charged with protecting the military and critical infrastructure from spying by terrorists and foreign intelligence services. But in August, Paul Wolfowitz, the deputy defense secretary, issued a directive ordering the unit to maintain a "domestic law-enforcement database that includes information related to potential terrorist threats directed against the Department of Defense."

The CIFA also works closely with the FBI and is conducting some duties for civilian agencies. For example, according to Department of Agriculture documents, the CIFA is in charge of doing background checks on foreign workers and scientists employed by the department&s agricultural-research service. The group also provides information to the Information and Security Command, or Inscom, the Army&s main intelligence organization, based at Fort Belvoir, Md.

The Army intelligence agent who investigated the law-school conference was assigned to Inscom. Army officials reviewing the Texas incident are investigating whether the agent may have overstepped his boundaries and whether may have tried to win the voluntary cooperation of the faculty and students. But they say that he was reacting to a possible counterintelligence threat to the military. It isn&t clear why there were Army lawyers at the conference in the first place, though some officials say the attorneys wanted to learn more about Muslim traditions and Islamic law.

Civil-rights advocates are skeptical. Robert Pugsley, professor of law at the Southwestern University School of Law in Los Angeles, says the Texas incident is "a chilling example" of the military&s overreaching. "It&ll multiply like fleas on a dog" if left unchecked, he says.

"What we are starting to see is 50 years of legal refinement and revisions for oversight being quietly jettisoned," adds Steven Aftergood, an intelligence policy specialist at the Federation of American Scientists, a nonprofit, left-leaning think tank in Washington.

But James Carafano, a policy analyst with the Heritage Foundation in Washington, says he believes the military has honored posse comitatus. His concern is that hard distinctions have been created between who has jurisdiction in homeland defense versus homeland security. It's distinctions terrorists might exploit, he says. "We may potentially be creating vulnerabilities."

One of the common complaints levied against criminal justice in the United States is that criminals often are acquitted because of ?legal technicalities.? For example, defendants who seem to be guilty find charges dismissed because police did not properly inform them of their ?Miranda Rights,? or evidence that clearly demonstrates guilt is kept from legal proceedings because of the ?exclusionary rule.?

Indeed, the average person might believe that American justice clearly favors the guilty over the avenging angels of the prosecutorial staffs that are unable to put predators away. In the wake of the O.J. Simpson ?not guilty? verdicts in 1995, for example, commentators and much of the outraged public called for an end to the jury system, stronger controls against defenses, and an overhaul of the nation?s judicial system to help better weight the proceedings in favor of the prosecutors.

Think again. At least in the federal system, the vast majority of the estimated 170,000 prisoners are incarcerated for what one can only call ?legal technicalities.? In fact, most federal crimes listed on the federal statutes are not crimes at all in the historical sense, but at best are imaginary charges that are derived from other alleged wrongdoing. Thus, we call them ?derivative crimes.?

Financial ?derivatives? are securities that obtain their value from the value of other securities, such as stock mutual funds or hedge funds. We have chosen to apply the term ?derivative? to classes of federal crimes that in and of themselves are works of fiction, but that are created as an umbrella term to include a number of other real violations of the law.

Take the crime of ?racketeering,? for example. In the real world, no one ?racketeers? another person. However, thanks to the Racketeer Influenced and Corrupt Organizations Act of 1970 (dubbed RICO) the federal government deems racketeering to be a pattern of wrongdoing such as running illegal gambling operations and prostitution rings.

Of course, the activities upon which racketeering is based are already illegal under most state laws. The reason that racketeering laws exist is not to redefine the crime, but rather to push defendants into federal court, where the rules of evidence clearly tilt in favor of the prosecution ? and where winning convictions is easier.

Furthermore, the racketeering laws are written in order to do an end run around the double jeopardy provisions of the U.S. Constitution and, in a technically legal way, to turn into federal cases what the Constitution clearly intended to be matters for the states.

Racketeering is not the only federal derivative crime. The prosecutor?s arsenal includes charges such as money laundering, mail fraud, wire fraud, and conspiracy, all of which carry stiff sentences, but which are not really crimes unto themselves.

Take money laundering. If federal investigators believe that at least part of someone?s money was obtained illegally, then if one either spends that money or deposits it in a bank, prosecutors can charge that individual with money laundering.

Keep in mind that the activities such as spending money or putting it into a bank by themselves are innocuous. Furthermore, once charges such as money laundering or conspiracy are filed, prosecutors do not have to prove the alleged underlying crime in order to win convictions. Instead, the burden of proof is similar to that of civil court, which is mere preponderance of the evidence.

Easier convictions and harsher punishments

The result is that federal prosecutors have an easier time obtaining convictions than do their state counterparts. Furthermore, federal law calls for harsher sentences for defendants who proceed to trial ? and subsequently lose ? than for those who plea bargain. The prospect of spending decades in prison for activities that for all intents and purposes are not real crimes can be horrifying to someone who has never had a brush with the law before.

Take the case of former Enron treasurer Ben Glison, who recently pleaded guilty to one count of ?conspiracy to commit wire and securities fraud.? While the simple association with the disgraced Enron firm is enough for someone to be judged a criminal in the public eye, the charge to which Glison pleaded guilty is a legal absurdity. To put it another way, he pleaded guilty to a derivative crime of another derivative crime. (For that, he received five years in prison.) The government did not have to prove that he had committed an actual crime of securities fraud (which is highly derivative in itself); it simply concocted a chain of phantom crimes in order to win a conviction.

It gets even worse. Three Christian anti-abortion activists in western Virginia were involved in civil litigation over an adverse possession case in which they cut timber on land to gain possession (all in accordance with Virginia state law). However, in subsequent litigation they settled out of court for $90,000 with an alleged landowner (who did not have title but to whom the land was later awarded by adverse possession by a federal judge).

When the men cut the timber (after they had carefully researched Virginia law on adverse possession and were convinced they were acting within the law), the government moved in and charged them with conspiracy, wire fraud, and mail fraud. While the charges might seem ominous, they are even more specious than most derivative crimes, which are filed to cover activities that are alleged criminal violations of state codes. In this case, however, no underlying crime was committed, as the original legal proceedings took place under civil litigation. The men were tried and convicted in federal court and are awaiting sentencing at this time.

(Moreover, during the investigation, federal officials offered the defendants a ?deal? if they would inform on or testify against some anti-abortion activists. They refused. Thus, one can see that political issues also have a role in the decision-making process of federal prosecutors.)

The filing of criminal charges in regard to a civil case is a major step forward in the federal prosecutorial system, as it greatly increases the possibilities for future ?white-collar crime? convictions. U.S. attorneys can simply troll through civil lawsuits, pick the losers, and charge them with various federal crimes such as conspiracy and mail fraud.

If this sounds as though the federal government is increasingly criminalizing normal business conduct, it is because that is exactly what is occurring. Keep in mind that the prospect of going to prison for sending letters or faxes in the course of lawsuits is going to keep a number of business owners and executives up late at night. It will also serve to drive a large portion of investment out of the United States, as the reality of ?lose a lawsuit, go to prison? begins to strike home.

In the wake of the Enron and WorldCom debacles, politicians from both sides of the aisle have been calling for more criminal penalties for business executives who seemingly engage in shady conduct. Indeed, new laws such as the USA PATRIOT Act and the Sarbanes-Oxley Act have further expanded the definitions of conspiracy and money laundering in the hope that the nets of criminality can be spread more widely in the business world.

Anyone who believes that expanding the already unjust list of federal crimes will help make business markets more secure and increase ?honesty? in economic dealings should look again. By their nature, federal criminal statutes are nebulous and people often do not realize that someone in authority regards their conduct as criminal until it is too late. Laws such as Sarbanes-Oxley and the USA PATRIOT Act increase the uncertainty of what is criminal behavior and what is not.

The great English jurist William Blackstone, who articulated the ?Rights of Englishmen? upon which law in this country was built, declared that law must be a shield to protect the innocent from predators, both private and public. Furthermore, he argued, law has to be consistent and certain, with clear boundaries to enable individuals to feel secure in the law.

The days of law having a Blackstone-like character are gone in the United States. Federal criminal law has made law more uncertain and has increased the arbitrariness of enforcement. The legal fences that once protected ordinary Americans are being torn down, and tyranny is moving into the void.

WASHINGTON ? Underscoring changes in domestic surveillance allowed under the Patriot Act, the Justice Department said in a report released today that it had conducted hundreds more secret searches around the country last year.

The department said the use of covert search powers, which were enhanced under the Patriot Act, showed how federal investigators had stepped up the war against terrorism in the United States over the last 32 months.

But civil liberties groups expressed concern over the increase because the targets of the searches were given fewer legal protections than suspects in normal criminal cases. The process of obtaining approval and executing the searches and surveillance is also shrouded in secrecy.

In an annual report to Congress, the Justice Department said it obtained approval to conduct electronic surveillance and physical searches in more than 1,700 intelligence cases last year. According to the department, the number of searches had surged 85% in the last two years; about 1,200 searches were authorized in 2002, and 900 in 2001.

The report did not identify or discuss specific cases.

U.S. Atty. Gen. John Ashcroft said in a statement that the data illustrated how the Justice Department and the FBI were "acting judiciously and moving aggressively" to uncover and prevent terrorist attacks.

The burst of activity was a direct result of the easing of standards for intelligence-gathering that was authorized by the Patriot Act, the terrorism-fighting law enacted by Congress six weeks after the attacks on the Pentagon and World Trade Center.

Under the new law, the government can obtain secret warrants by showing that a significant purpose of the search has to do with intelligence-gathering, as opposed to a criminal investigation.

Before the change, the law was interpreted as requiring the government to show that intelligence-gathering was the primary reason for the request.

Many experts think the old rules were too restrictive, and unduly impeded the hunt for potential terrorists. The new procedures were upheld in court in November 2002. The search applications are reviewed by a federal tribunal known as the Foreign Intelligence Surveillance Court. The court was set up in the mid-1970s as a check on government power amid revelations of massive illegal spying on political dissidents and other citizens by the FBI.

But the court, which conducts secret proceedings, has become a lightning rod for civil liberties concerns in the post-Sept. 11 era as the number of surveillance applications and the volume of the court's work has rapidly grown.

A major fear is that investigators are using the so-called FISA procedures to bypass the stricter requirements that cover the issuance of search warrants in criminal cases, in which the government must show probable cause that a crime was committed. The concern is that the process is enabling the government to chip away at protections afforded defendants under the 4th Amendment prohibition against illegal searches.

Information gleaned from the intelligence searches can later be used in criminal prosecutions, but defendants in such proceedings have fewer rights to attack the basis of the searches or to obtain intercepted information.

Moreover, if the intelligence searches do not lead to criminal prosecutions, the targets are never told that they were under surveillance; in criminal cases, suspects must receive notice of any surveillance even if they are never charged.

"The real mistakes never come to light" in intelligence cases, said James X. Dempsey, executive director of the Center for Democracy & Technology, a Washington think tank. He said he was concerned that "an increasing number [of the FISA cases] are likely to end up in criminal prosecutions."

"I am troubled by the secrecy." Dempsey said. "There is no way to know whether the pendulum has swung too far."

Adding to the concern is the fact that the number of intelligence searches in recent years has come to rival and possibly exceed the number of searches in criminal cases, as the government has marshaled federal resources against fighting terrorism instead of other crimes.

According to the Administrative Office of the U.S. Courts, federal and state courts authorized the use of wiretaps and other electronic surveillance in about 1,400 cases last year, compared with the 1,700 FISA warrants, which also cover physical searches.

"They are shifting the government apparatus for surveillance to a much more secret process with much less judicial oversight," said Timothy Edgar, legislative counsel for the American Civil Liberties Union in Washington.

By classifying cases as intelligence cases, he said, "they are doing an end run around the 4th Amendment."

President Bush plans to unveil next month a sweeping mental health initiative that recommends screening for every citizen and promotes the use of expensive antidepressants and antipsychotic drugs favored by supporters of the administration.

The New Freedom Initiative, according to a progress report, seeks to integrate mentally ill patients fully into the community by providing "services in the community, rather than institutions," the British Medical Journal reported.

Critics say the plan protects the profits of drug companies at the expense of the public.

The initiative began with Bush's launch in April 2002 of the New Freedom Commission on Mental Health, which conducted a "comprehensive study of the United States mental health service delivery system."

The panel found that "despite their prevalence, mental disorders often go undiagnosed" and recommended comprehensive mental health screening for "consumers of all ages," including preschool children.

The commission said, "Each year, young children are expelled from preschools and childcare facilities for severely disruptive behaviors and emotional disorders."

Schools, the panel concluded, are in a "key position" to screen the 52 million students and 6 million adults who work at the schools.

The commission recommended that the screening be linked with "treatment and supports," including "state-of-the-art treatments" using "specific medications for specific conditions."

The Texas Medication Algorithm Project, or TMAP, was held up by the panel as a "model" medication treatment plan that "illustrates an evidence-based practice that results in better consumer outcomes."

The TMAP -- started in 1995 as an alliance of individuals from the pharmaceutical industry, the University of Texas and the mental health and corrections systems of Texas -- also was praised by the American Psychiatric Association, which called for increased funding to implement the overall plan.

But the Texas project sparked controversy when a Pennsylvania government employee revealed state officials with influence over the plan had received money and perks from drug companies who stand to gain from it.

Allen Jones, an employee of the Pennsylvania Office of the Inspector General says in his whistleblower report the "political/pharmaceutical alliance" that developed the Texas project, which promotes the use of newer, more expensive antidepressants and antipsychotic drugs, was behind the recommendations of the New Freedom Commission, which were "poised to consolidate the TMAP effort into a comprehensive national policy to treat mental illness with expensive, patented medications of questionable benefit and deadly side effects, and to force private insurers to pick up more of the tab."

Jones points out, according to the British Medical Journal, companies that helped start the Texas project are major contributors to Bush's election funds. Also, some members of the New Freedom Commission have served on advisory boards for these same companies, while others have direct ties to TMAP.

Eli Lilly, manufacturer of olanzapine, one of the drugs recommended in the plan, has multiple ties to the Bush administration, BMJ says. The elder President Bush was a member of Lilly's board of directors and President Bush appointed Lilly's chief executive officer, Sidney Taurel, to the Homeland Security Council.

Of Lilly's $1.6 million in political contributions in 2000, 82 percent went to Bush and the Republican Party.

Another critic, Robert Whitaker, journalist and author of "Mad in America," told the British Medical Journal that while increased screening "may seem defensible," it could also be seen as "fishing for customers."

Exorbitant spending on new drugs "robs from other forms of care such as job training and shelter program," he said.

However, a developer of the Texas project, Dr. Graham Emslie, defends screening.

"There are good data showing that if you identify kids at an earlier age who are aggressive, you can intervene ... and change their trajectory."

"The report listed three ways in which government agencies obtain data from the private sector: by purchasing the data, by obtaining a court order or simply by asking for it. Corporations freely share information with government agencies because they don't want to appear to be unpatriotic, they hope to obtain future lucrative Homeland Security contracts with the government or they fear increased government scrutiny of their business practices if they don't share."

The government is increasingly using corporations to do its surveillance work, allowing it to get around restrictions that protect the privacy and civil liberties of Americans, according to a report released Monday by the American Civil Liberties Union, an organization that works to protect civil liberties.

Data aggregators -- companies that aggregate information from numerous private and public databases -- and private companies that collect information about their customers are increasingly giving or selling data to the government to augment its surveillance capabilities and help it track the activities of people.

Because laws that restrict government data collection don't apply to private industry, the government is able to bypass restrictions on domestic surveillance. Congress needs to close such loopholes, the ACLU said, before the exchange of information gets out of hand.

"Americans would really be shocked to discover the extent of the practices that are now common in both industry and government," said the ACLU's Jay Stanley, author of the report. "Industry and government know that, so they have a strong incentive to not publicize a lot of what's going on."

Last year, JetBlue Airways acknowledged that it secretly gave defense contractor Torch Concepts 5 million passenger itineraries for a government project on passenger profiling without the consent of the passengers. The contractor augmented the data with passengers' Social Security numbers, income information and other personal data to test the feasibility of a screening system called CAPPS II. That project was slated to launch later this year until the government scrapped it. Other airlines also contributed data to the project.

Information about the data-sharing project came to light only by accident. Critics like Stanley say there are many other government projects like this that are proceeding in secret.

The ACLU released the Surveillance-Industrial Complex report in conjunction with a new website designed to educate the public about how information collected from them is being used.

The report listed three ways in which government agencies obtain data from the private sector: by purchasing the data, by obtaining a court order or simply by asking for it. Corporations freely share information with government agencies because they don't want to appear to be unpatriotic, they hope to obtain future lucrative Homeland Security contracts with the government or they fear increased government scrutiny of their business practices if they don't share.

But corporations aren't the only ones giving private data to the government. In 2002, the Professional Association of Diving Instructors voluntarily gave the FBI the names and addresses of some 2 million people who had studied scuba diving in previous years. And a 2002 survey found that nearly 200 colleges and universities gave the FBI information about students. Most of these institutions provided the information voluntarily without having received a subpoena.

Collaborative surveillance between government and the private sector is not new. For three decades during the Cold War, for example, telegraph companies like Western Union, RCA Global and International Telephone and Telegraph gave the National Security Agency, or NSA, all cables that went to or from the United States. Operation Shamrock, which ran from 1945 to 1975, helped the NSA compile 75,000 files on individuals and organizations, many of them involved in peace movements and civil disobedience.

These days, the increasing amount of electronic data that is collected and stored, along with developments in software technology, make it easy for the government to sort through mounds of data quickly to profile individuals through their connections and activities.

Although the Privacy Act of 1974 prohibits the government from keeping dossiers on Americans unless they are the specific target of an investigation, the government circumvents the legislation by piggybacking on private-sector data collection.

Corporations are not subject to congressional oversight or Freedom of Information Act requests -- two methods for monitoring government activities and exposing abuses. And no laws prevent companies from voluntarily sharing most data with the government.

"The government is increasingly ... turning to private companies, which are not subject to the law, and buying or compelling the transfer of private data that it could not collect itself," the report states.

A government proposal for a national ID card, for example, was shot down by civil liberties groups and Congress for being too intrusive and prone to abuse. And Congress voted to cancel funding for John Poindexter's Total Information Awareness, a national database that would have tracked citizens' private transactions such as Web surfing, bank deposits and withdrawals, doctor visits, travel itineraries and visa and passport applications.

But this hasn't stopped the government from achieving the same ends by buying similar data from private aggregators like Acxiom, ChoicePoint, Abacus and LexisNexis. According to the ACLU, ChoicePoint's million-dollar contracts with the Justice Department, Drug Enforcement Administration and other federal agencies let authorities tap into its billions of records to track the interests, lifestyles and activities of Americans.

By using corporations, the report said, the government can set up a system of "distributed surveillance" to create a bigger picture than it could create with its own limited resources and at the same time "insulate surveillance and information-handling practices from privacy laws or public scrutiny."

Most of the transactions people make are with the private sector, not the government. So the amount of data available through the private sector is much greater.

Every time people withdraw money from an ATM, buy books or CDs, fill prescriptions or rent cars, someone else, somewhere, is collecting information about them and their transactions. On its own, each bit of information says little about the person being tracked. But combined with health and insurance records, bank loans, divorce records, election contributions and political activities, corporations can create a detailed dossier.

And studies show that Americans trust corporations more than they trust their government, so they're more likely to give companies their information freely. A 2002 phone survey about a proposed national ID plan, conducted by Gartner, found respondents preferred private industry -- such as bank or credit card companies -- to administer a national ID system rather than the government.

Stanley said most people are unaware how information about them is passed on to government agencies and processed.

"People have a right to know just how information about them is being used and combined into a high-resolution picture of (their) life," Stanley said.

Although the Privacy Act attempted to put stops on government surveillance, Stanley said that its authors did not anticipate the explosion in private-sector data collection.

"It didn't anticipate the growth of data aggregators and the tremendous amount of information that they're able to put together on virtually everyone or the fact that the government could become customers of these companies," Stanley said.

Although the report focused primarily on the flow of data from corporations to the government, data flow actually goes both ways. The government has shared its watch lists with the private sector, opening the way for potential discrimination against customers who appear on the lists. Under section 314 of the Patriot Act, the government can submit a suspect list to financial institutions to see whether the institution has conducted transactions with any individuals or organizations on the list. But once the government shares the list, nothing prevents the institution from discriminating against individuals or organizations on the list.

After the terror attacks of Sept. 11, 2001, the FBI circulated a watch list to corporations that contained hundreds of names of people the FBI was interested in talking to, although the people were not under investigation or wanted by the FBI. Companies were more than happy to check the list against the names of their customers. And if they used the list for other purposes, it's difficult to know. The report notes that there is no way to determine how many job applicants might have been denied work because their names appeared on the list.

"It turns companies into sheriff's deputies, responsible not just for feeding information to the government, but for actually enforcing the government's wishes, for example by effectively blacklisting anyone who has been labeled as a suspect under the government's less-than-rigorous procedures for identifying risks," the report states.

Last March, the Technology and Privacy Advisory Committee, created by Secretary of Defense Donald Rumsfeld to examine government data mining, issued a report (PDF) stating that "rapid action is necessary" to establish clear guidelines for responsible government data mining.

The ACLU's Stanley said companies are in the initial stages of the Homeland Security gold rush to get government contracts, and that the public and Congress need to do something before policies and practices of private-sector surveillance solidify.

"Government security agencies always have a hunger for more and more information," said Stanley. "It's only natural. It makes it easier for law enforcement if they have access to as much info as they want. But it's crucial that policy makers and political leaders balance the needs of law enforcement and the value of privacy that Americans have always expected and enjoyed."

WASHINGTON ? The Justice Department conceded Wednesday that in its zeal to win convictions in a terrorism case in Detroit last year, prosecutors engaged in "a pattern of mistakes and oversights" that may constitute criminal misconduct.

The case was the first major terrorism prosecution after the Sept. 11 attacks and had been hailed by U.S. Atty. Gen. John Ashcroft as an example of the government's successful campaign to disrupt terrorist "sleeper cells" in the country.

In its 60-page court-ordered filing, the Justice Department supports the Detroit defendants' request for a new trial and states that it will no longer pursue terrorism charges against them.

A ruling by the judge in the case could come as early as today.

The filing details a wide range of misdeeds, while offering a rare glimpse inside the government's war on terrorism. It includes allegations that the main prosecutor in the case ? Richard G. Convertino ? disregarded dissenting views from experts and suppressed or withheld evidence that might have been helpful to the defense.

Prosecutors accused four defendants, arrested in Detroit in a roundup of Arab immigrants a week after the Sept. 11 attacks, of conspiring to launch attacks in the United States, Jordan and Turkey.

Federal agents had been looking for another man when they went to a second-story apartment in the middle of the night and found the men, some of whom had worked at Detroit Metropolitan Airport. They were arrested and charged with canvassing the airport and other locations. In Washington, Ashcroft announced that federal officials believed that the men had prior knowledge of the Sept. 11 attacks, a statement he later retracted.

In June 2003, a jury in Detroit convicted two of the men on charges including conspiracy to provide material support for terrorism. A third defendant was convicted of document fraud, and a fourth was acquitted. When problems in the case came to light last fall, Convertino, an assistant U.S. attorney in Detroit, was removed from the case. In February he sued the government, claiming that he was never given adequate support.

Among other findings, the report issued late Tuesday found that prosecutors had withheld a jailhouse letter discrediting the government's star witness and used a federal defendant in a separate cocaine case to translate sensitive audiotapes.

The report found that prosecutors had suppressed evidence supporting a defense position that sketches found in a day planner in the defendants' Detroit apartment were the doodlings of a mentally ill man ? rather than evidence that the defendants were casing possible terrorist targets, as the government asserted at trial.

And it also revealed that the department's public integrity section launched a criminal investigation into the handling of the case. A Justice Department spokesman declined to elaborate or say who was the target.

The findings come as vindication for defense lawyers who, throughout the case, had complained that the government withheld evidence and was not playing fairly.

The Justice Department's admissions present a counterpoint to claims by the Bush administration that it is winning the war on terrorism, which have been reverberating in speeches this week at the Republican National Convention in New York.

It also underscored the government's mixed success in prosecuting terrorism cases since Sept. 11. Although the Justice Department has won numerous highly publicized guilty pleas ? often by dropping the most serious charges ? it has been handed partial or outright defeats in major terrorism cases it has taken to trial. Most recently, a computer student in Boise, Idaho, was acquitted of federal charges that he used the Internet to raise money and recruit people for terrorist causes.

U.S. District Judge Gerald Rosen is expected to rule as early as today on whether to order a new trial on document fraud charges alone. Defense lawyers are expected to seek a dismissal of all charges and the defendants' release.

"There is actual evidence that there was a deliberate withholding of evidence that is inconsistent with the government theory of terrorism and consistent with our defense, and that is a subversion of justice," said James Thomas, a Detroit lawyer who represents one of the defendants.

"That is not a way to win a war on terror. That is not what the Constitution is talking about. It certainly isn't the way that prosecutors should conduct business," he said.

A lawyer for Convertino strongly disputed that characterization. "Even if Rick was aware of the material that the government characterizes as disclosable to the defense, that material was insubstantial and cumulative and would not have encouraged the reasonable probability that a different verdict would have resulted after trial," attorney William Sullivan Jr. said.

"As with every other case he has prosecuted, Rick Convertino pursued this one fairly and justly, with the safety and security of his community uppermost in his mind in the wake of 9/11," Sullivan said.

The case began unraveling late last year after Rosen learned that prosecutors had not turned over to the defense a letter from a Detroit gang leader who was once held in the same prison as the star witness for the government. The letter suggested that the witness, Youssef Hmimssa, a former roommate of the defendants who had a history of credit card fraud, had lied to the FBI. Hmimssa testified that they were all Islamic fundamentalists involved in terrorist activities.

Convertino, a 14-year Justice Department veteran, became the target of an ethics investigation by the department's Office of Professional Responsibility. After being removed from the case, the prosecutor sued Ashcroft, saying the department had violated his rights and that he was a target of retaliation because he had complained internally that department red tape had hobbled the prosecution.

In its report, the Justice Department acknowledged that the letter about Hmimssa should have been turned over. But the inquiry also found additional evidence that the department now says should have been shared with the defense, and exposed deep differences of opinion within the government over the handling of evidence and testimony.

The report raised new doubts about a central piece of the government's case ? a day planner found in the defendants' apartment that the government said included surveillance sketches of a Turkish air base used by American fighter jets and a military hospital in Jordan.

The report said the government attempted to create the "false impression" at trial that "diplomatic red tape" prevented them from obtaining photos of the hospital to compare to the sketches. In fact, the report said, the facility bore little, if any resemblance to the sketches.

The report also found that a retired CIA officer, whom Convertino had consulted about the supposed air base sketch, told the prosecutor on numerous occasions that he did not believe the sketch "conveyed any useful information," and that the former officer believed "Convertino was shopping for an opinion consistent with his own."

The report also cast doubt on the testimony of an FBI supervisory agent in Detroit who said that a videotape found in the defendants' possession included "casing" shots of Las Vegas, Disneyland and New York.

The report found that the prosecutors had evidence that the Las Vegas office of the FBI disagreed with that view, but did not turn that information over to the court or the defense.

"In its best light, the record would show that the prosecution committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence (including impeachment material) and created a record filled with misleading inferences that such material did not exist," the department said in its memo. "Accordingly, the government believes that it should not prolong the resolution of this matter pursuing hearings it has no reasonable prospect of winning."

A Lengthy piece out of ReasonOnline. Is DBMA represented in New Hampshire?

Revolt of the Porcupines!The Free State Project wants libertarians to take over New Hampshire. Is this a revolutionary plan or a pipe dream?Brian Doherty

It?s not often that libertarians are enough of a threat to anyone else?s interests that they generate protests. But that is what has been happening in New Hampshire lately. In June, 200 residents showed up at a heated town meeting in tiny Grafton township to challenge a trio of libertarian activists they feared were trying to conquer their community. Less than a week later, a squad of protesters picketed a fund-raising dinner in Plymouth, featuring Republican Governor Craig Benson, sponsored by the New Hampshire Liberty Alliance.

Both protests were triggered by the Free State Project, or FSP, a recently hatched plan for libertarians to roll back the government of New Hampshire and thus create a flagship for a freer America.

The FSP is the brainchild of a 27-year-old political science instructor named Jason Sorens. The Yale lecturer?s idea is both simple and grandiose: Given libertarians? eternal lack of political traction as a thinly spread minority, their most realistic chance to wield political power is to congregate in one state. Sorens figured it would be best if the state had a population below 1.5 million and a political culture already sympathetic to libertarian thinking.

Sorens introduced the idea in a 2001 essay in the webzine Libertarian Enterprise. He then sired an organization dedicated to executing it. FSP leaders and spokesmen proselytize for a freedom lovers? exodus wherever sympathetic listeners are likely to gather, encouraging their fellow libertarians to take the FSP Pledge. The pledge commits you to the proposition that, once 20,000 like-minded libertarians have also made the pledge?thereby solving what might be called the ?you go first? problem?you will within five years move to New Hampshire and be an activist for increased liberty in that state.

Sorens, a married man with no children, had studied small separatist and decentralist movements such as the Mormons and the Parti Quebecois. He became fascinated by recent successes in devolved local control in Wales, Scotland, and Spain, and decided that, when it comes to effecting radical political change, smaller localities, not huge federal states, are where the action is.

Sorens identified 10 American states where he thought 20,000 libertarians could make significant strides toward such goals as lowering taxes, achieving school choice, and creating more vibrant and decentralized local authorities. In September 2003, after 5,000 people had signed up, the FSP pledgers voted on their favorite. New Hampshire, whose slogan is ?Live Free or Die,? won by a 10 percentage-point margin over second-place Wyoming.

That?s why I spent the last weekend in February, the mellow end of a fierce Granite State winter, hanging around with a group of FSP ?Porcupines? and interested parties. (FSPers have adopted the porcupine as their totem?a creature that's peaceful when left alone but capable of causing great harm in self-defense.) We lounged around talking politics in the sitting room of the Inn at Danbury, a cozy family-run bed and breakfast, checked out nearby towns such as Grafton, and enjoyed winter sports such as snowmobiling.

The people I met didn?t seem to be libertarian versions of the Unabomber, desperate to live separated from the ideologically uncongenial like a modern-day Thoreau. They just think contemporary government is too expensive, too intrusive, and too active, and are eager to embrace the most effective way to change that.

As peculiar and radical as it might seem when you first hear about it, the FSP has received widespread, serious attention in the media. The New York Times ran a respectful 1,500-word piece about it last October. Playboy has given the Porcupines props, as has Reader?s Digest, which seems to indicate an impressively wide appeal.

To be sure, it's a lot easier to garner favorable press reports than it is to get people to actually schlep to an often brutally cold, sparsely populated state. But whether or not the FSP ever hits its target membership goal, much less turns New Hampshire into a libertarian paradise, it retains real significance as a thought experiment. It forces people to confront the reality of how much they are willing to sacrifice for their notions about political liberty?and how much people with different grievances against government might have in common.

?My Best Friends Are Nonlibertarians?

The Free State Project is the most recent and successful face of libertarian separatism?or, as some call it, libertarian Zionism. To be sure, many involved in the search for new libertarian communities reject such terms. Roderick Long, a philosophy professor at Auburn University and the brains behind the Libertarian Nation Foundation, a group dedicated to theorizing about the possibilities for libertarian polities, tells me he doesn?t like the term separatist because ?the attraction is not that I don?t want to live near or interact with nonlibertarians. Most of my best friends are nonlibertarians. We don?t want to live by ourselves but simply want a chance to demonstrate to the world that libertarian principles actually work. We want to escape from government, not escape from ordinary decent people? who happen not to share their political philosophy.

Ever since Ayn Rand presented the self-sufficient, regulator-free paradise of Galt?s Gulch in her 1957 epic Atlas Shrugged, people have periodically popped up to sell the idea that the only sure path to liberty is for libertarians to gather together in close proximity. Then no one would mooch or rob or force paper fiat money on their fellows. Freely minted gold coins would clink on the counter of brothels and, if you please, opium dens. And the weasels who in a statist world would be telling brave producers what they had to make or what they had to pay their employees would need to find new work?perhaps as toll booth operators on private roads, or tort lawyers, since lawsuits for proven harms would replace the regulatory state.

Sorens? originality lies in his common sense, seemingly feasible suggestion about how to act on this impulse. His predecessors never quite managed that.

One of the earliest postwar proposals to actualize the Galt?s Gulch fantasy was one of the most outr?: the idea that libertarians, driven to the edges of the continental shelf by an ever-expanding Leviathan state, should retreat to the high seas. Libertarian uberfreak Kerry Thornley was the early apostle of this idea, in a series of articles in the seminal ?60s libertarian zine Innovator. (This was before he decided he had been a CIA mind-control patsy possibly involved in the JFK assassination as a ?second Oswald.? See ?Historia Discordia,? August/September.)

A wealthy pharmaceutical company owner named Werner Stiefel was the first to try to create an ocean-based libertarian society, not just write about it. In 1968, under the name Operation Atlantis, Stiefel began recruiting eager young libertarians to move into an old motel in Saugerties, New York. From that humble base they were, according to the plan, eventually to obtain sovereignty over some island?the Prickly Pear Cays in the British West Indies were an initial target?and turn it into a fresh, uncorrupted country. Under that new nation?s flag, Stiefel and his freebooters could sail ships that would build artificial platforms in the ocean, which would become the real new nation.

The Stiefelers coined their own silver money, the deca, and earned a brief mention in Esquire in September 1970. ?Operation Atlantis is a real mind-blower,? Esquire said. ?They?re not just interested in a floating community, but an honest-to-God independent country.?How are they going to do it? They?re going to build an island, baby, in the middle of the ocean.? In 1971 the group changed the price of its newsletter from 24 U.S. cents to 32 ?deca-cents.?

In the early ?70s Stiefel and his crew built from scratch a rebar-and-mortar boat inside a geodesic dome. They managed, with many difficulties along the way, to sail the homemade vessel from Saugerties down to the Silver Shoals area, near the Bahamas. There, according to Erwin Strauss? book How to Start Your Own Country, they eventually ran afoul of Haitian dictator Jean-Claude Duvalier, who had designs of his own for the area where Stiefel tried to build a nation. (Sunken Spanish galleons with unclaimed treasure were thought to be in the area.) Stiefel and his crew were driven away, and no new Atlantis rose above the waves.

But the dream of an aquatic Galt?s Gulch was too sweet to die. Around the same time that Stiefel ran afoul of Baby Doc, Mike Oliver, a concentration camp survivor, coin dealer, and land developer from Nevada, was inflaming libertarian minds with his 1968 book called A New Constitution for a New Country. In it he presented a model constitution for a nation whose extremely limited government could be financed voluntarily. Oliver did more than just write constitutions for sand castles in the sky and imagine ocean-bound libertarian strongholds; he actually gathered teams and money to build them. (Who would actually inhabit them always seemed a bit of an afterthought.)

In 1972, Oliver supervised the sea kingdom of Minerva, built on a South Pacific reef that was dry only at low tide. Minerva was quickly conquered, in one assault with one gunboat, by the king of Tonga. Oliver and his circle?which eventually included John Hospers, a philosopher at the University of Southern California and the Libertarian Party?s first presidential candidate?a couple of years later tried to make common cause with a separatist movement on the Bahamian island of Abaco, but that effort fizzled out.

Oliver?s most serious reach for libertopia came on the South Pacific island of Vanuatu, part of the New Hebrides. In 1980 representatives of Oliver?s Phoenix Foundation?which for a while had former Reason editor and Reason Foundation founder Robert Poole on its board of directors ?supplied advice and some technical skill to Jimmy Moly Stevens, leader of a Vanuatu separatist movement. The French and British, who had a peculiar dual protectorate over the islands, were pulling out. While some questioned Stevens? libertarian bona fides, we never got a chance to find out how sincere he was.

This nascent nation also was strangled in its crib. At least this time it took more than one Tongan gunboat. Troops from both Papua New Guinea and Australia, in service of the socialist government that inherited the New Hebrides after the French and British left, suppressed Stevens? rebellion. He spent a decade in jail, and the Phoenix Foundation caught the eye of the feds, who briefly considered prosecution of the parties involved for violations of the Arms Export Control Act and the Logan Act, which prohibits private citizens from interfering in U.S. relations with foreign powers.

?Grab Them by the Scruff of Their Necks?

Jason Sorens? dream is off to a better start than the soggy failures of the past. Choosing dry land was probably a wise move. Another vital ingredient has been the Internet, the most useful tool for the seeding, crafting, and guiding of intentional communities ever invented.

The FSP has made effective use of the Internet?s potential: At freestateproject.org, you can take the pledge, communicate on public message boards, and register your personal information, which, if you like, eventually will be available to other Free Staters. So all the Porcupines will be able to talk among themselves about moving plans and job and housing prospects, or just hash out libertarian ideas and how to actualize them. At press time, 6,103 people were pledged, and about 100 already had moved, although the pledge does not require them to do so until the target of 20,000 participants has been reached.

The Free Staters I visited in New Hampshire assure me that if and when the exodus begins, the traveling Porcupines will find many great things already awaiting them. For starters, there?s Article 10 of the state constitution?s Bill of Rights, which reads:

?Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.?

As Sorens has written, New Hampshire has a history based on ?settlement patterns centered around small towns occupying rills, dales, and valleys? that gave rise to a ?town meeting system [that] allowed citizens to keep their government officials close enough to ?grab them by the scruff of their necks? if they overstepped their power. Essentially what developed was a kind of ?communal libertarianism? different from the individualism of the West, where one could simply escape the company of others.?

That system, argues Sorens, is still largely intact, which increases the Porcupines? confidence that they can make a difference in New Hampshire. Still, it is treacherous to make assumptions about how human beings today are influenced, bound by, or carrying on attitudes prevalent among their ancestors hundreds, or even dozens, of years ago.

Beyond matters of inchoate political culture, New Hampshire has a good head start on many specific issues important to libertarians. It lacks both sales and personal income taxes?though many complain the property taxes are too high, and there is an 8.5 percent business profits tax. About two-thirds of the property taxes go to public schools, so a successful school privatization would have a huge impact on the tax burden.

The state?s gun policies are relatively libertarian: Open carry is legal without a permit, and concealed carry requires a permit that is easy to get, with localities forbidden to impose tougher rules. There is no legal requirement for automotive liability insurance, though New Hampshire does have government-enforced ?community rating? for health insurance. The state lacks annoying bits of nanny statism such as seat belt and helmet laws for adults.

Free Stater Keith Murphy, an urban studies graduate student at the University of Maryland, tells me that on his visit to New Hampshire to scout it out, he did something every day that would have been against the law in his home state. These exercises of freedom included driving without a seat belt, buying fireworks and shooting them, and even the humble but profound act of buying beer at a grocery store.

New Hampshire boasts a median household income of $53,910, more than 20 percent above the national median, making it fourth-ranked of all states by that measure. It also has the lowest percentage of population below the poverty line of any state. It has a healthy high-tech economy, which is important for the types of jobs that attract people who will be able to easily move to the Free State. One Porcupine, Robert Gibson, is already moving his computerized process-serving corporation, Corbadex, up to Manchester and offering jobs to fellow Free Staters.

For libertarians who crave genuine political influence, perhaps the most encouraging thing about New Hampshire is that it has the largest state legislature in the country: 400 representatives, most with constituencies smaller than 3,000. (The downside of this is that each legislator is commensurately rather powerless to get things done.) You could realistically shake hands with every single voter in your district, and probably have a cup of coffee with every voter you?d need to win. House members are paid a pittance of $100 a year, making government in New Hampshire a game for enthusiastic amateurs and the retired. And ballot fusion is legal there, so Libertarian Party types could conceivably also win major-party nominations and gain straight party votes.

At the Free State gathering in Danbury I met Henry McElroy, a charming and dedicatedly anti-state Republican state representative whose libertarianism is so radical that it?s difficult to imagine him holding office anywhere else. McElroy thinks he?s making some headway with a bill that would return New Hampshire to the gold standard. Other bills introduced in the New Hampshire legislature (all unlikely to become law) would nullify the 16th amendment, reduce the business profits tax by half over five years, and make jury nullification an established legal right.

Another advantage of New Hampshire?which has some sea coast, lots of mountains, lots of small rural towns, and a few sizable metropolises?is how well suited it seems to philosopher Robert Nozick?s vision of a libertarian utopia as a framework for lots of different mini-utopias. There are many different ways for Free Staters to build their dreams in New Hampshire. They could live in the snowy mountains or in a big city within an hour?s drive of Boston; run for state legislature or join the National Organization for the Reform of Marijuana Laws; fight to loosen homeschooling requirements or to lower property taxes; live in an anarchist commune in the woods or in a downtown apartment.

New Hampshire?s libertarian-leaning governor, Craig Benson, even signed on as a friend of the FSP. ?Come on up,? he has told the Porcupines. ?We?d love to have you. You?re active, you want to make the state or the towns and cities you hope to live in a better place.? The chairwoman of the state Democratic Party predictably complained (even as she ticked off three good reasons to join the movement), ?Why is Governor Benson supporting a group that wants to legalize prostitution, legalize drugs, and eliminate public schools??

In mid-April, the Concord Monitor reported that ?a panel authorized by the governor to find inefficiencies in the state health and transportation departments is composed almost entirely of members of the Free State Project.? Gov. Benson had befriended Libertarian Party state chair John Babiarz while running against him for governor in 2002; they discovered they had some common attitudes toward the size and inefficiency of state government. Benson appointed Babiarz to a state commission seeking out government inefficiencies, and Babiarz brought on a bunch of Free Staters to assist him in that role. Babiarz tells me he has his eye on cutting state spending on transportation and child services, and has already advised the state to cut or curtail its role in running plant nurseries and prisons. Unusual as this might be on the national level, the head of the state Libertarian Party is a serious political player in New Hampshire.

Despite any head start they might have, Sorens recommends that Porcupines take things slowly upon moving to New Hampshire. He writes that ?we will have to do our best to blend in, lay down roots in the community?If we come in trumpeting an ?abolish everything? platform, we will make enemies out of people who might otherwise be sympathetic to us.? Some heated opposition to the FSP is already evident, provoked by a splinter group called the Free Town Project.

The Free Town Project advocates that Porcupines concentrate themselves in Babiarz?s home of Grafton, which already lacks most local regulations. Radical talk on Web sites and listservs associated with the Free Town Project got some locals riled enough that one mailed an anti-FSP flier to everyone in Grafton. This was followed by the June town meeting, at which FSP representatives were asked to explain themselves. FSP organizer Tim Condon tells me he got a lynch mob feeling from many of the Graftonites. Condon came up from his Florida home to defend the project?s honor against what he considered the ?libertarian exhibitionism? of a few outliers who were talking up Grafton as a home for freewheeling dueling, bums fighting in the streets as low-paid entertainers, and bestiality.

Sorens? expressed wishes are less extreme but still radical. He speculates about ordering federal law enforcement agents out of localities, for example. But unlike in Grafton, which has a population of only 1,000 or so, there is little risk that the FSP will ?flood? the whole state. It plans an influx of 20,000 over several years; lately, New Hampshire has been gaining about that many newcomers every year.

"I Can?t Sit by and Watch It Happen Without Me"

The Free Staters earned a major bit of local media attention the weekend I was with them in February. We all gathered in a friendly Irish pub to watch the Massachusetts-based TV newsmagazine Chronicle dedicate a half-hour to the FSP. Prominently featured was FSP?s current president, Amanda Phillips. Phillips is a single mother in her early 30s, a former Air Force special investigator turned accounting supervisor, currently living in Massachusetts. She is an anarchist, a matter of some controversy among Free Staters, though it didn?t seem to faze the TV reporters.

The TV cameras showed Phillips curled up with David Friedman?s anarcho-capitalist classic The Machinery of Freedom and spotlighted her sneakers emblazoned with the circle-A anarchy symbol. Most Porcupines were delighted with the piece, but certain touches clearly were intended to make Free Staters seem a little silly, if not bordering on lunatic and dangerous. A fair amount of screen time was given to the Dalton Gang, a group of cowboy-emulating vintage weapon enthusiasts exercising their liberty to openly carry their guns. Also featured was a Porcupine tooling down the street in his smoke-belching Unimog, a bizarre, hulking German military vehicle. Ultimately, the anchors of the show concluded that the FSP is an ?interesting? development, as opposed to an alarming one.

Which is good, Phillips thinks. While she knows people like the Daltons probably seemed like comic-relief freaks to most viewers, right now her audience is not a standard TV audience. It is fellow libertarians, the ones she is trying to convince to move. And they will be aware that if people want to carry their old guns or drive German military vehicles, that?s just fine.

To Condon, an ex-Marine and Florida attorney, that sort of colorful eccentricity is more than just fine. He is nostalgic about his old college days in Gainesville, Florida, remembering ?all these junky trailers from the ?50s and ?60s, people building sheds, old junky cars?it was terrific! Pimps, whores, poets, law students, geneticists, all mixed up?great, but very poor-looking.? He?s hoping to find a similar dynamic mix in a Free State, unburdened by the officious ?little Hitlers? who insist that other people paint their houses or maintain their yards or behave the way they want them to behave.

But Condon can?t move right away. He?s taking care of his elderly mother down in Florida. This sort of personal-life conflict no doubt will keep even many excited liber-tarian activists out of New Hampshire. Indeed, given all the advantages New Hampshire already has to the libertarian-minded, one wonders why the market hasn?t already taken care of this problem, so to speak. Why were entrepreneurs like Sorens and Phillips needed to sell the idea of migrating to New Hampshire, if lower taxes and less government dominate libertarians? decisions about where to live?

Despite rhetoric from Porcupines about how their move is easy compared to the difficulties that early migrants to America faced crossing the oceans in search of liberty, most Americans, even most libertarians?assuming they manage not to run afoul of drug laws, eminent domain, or IRS prosecutions?just don?t feel so tyrannized on a day-to-day basis that they feel an urgent need to uproot themselves.

So who are these people ready to move to New Hampshire for political reasons? The people I met and talked to in the Free State movement are varied, but not all that varied. They are overwhelmingly white and white-collar, though not very wealthy. They include chiropractors, programmers, college students in both social and medical sciences, business supervisors, financial planners, and hair stylists.

What they do not have in common is horror stories about state persecution that ruined their lives. I heard no stories of drug arrests, land grabs, regulation-driven business failures, or children snatched away by government agencies. A zoology student with a Green Party background hopes the Free State will be a more genuinely communitarian world, one where people have to cooperate to meet the social needs government now tries to meet. Tim Condon speculates New Hampshire will become not just a freewheeling social scene but also an American Hong Kong, a low-regulation mecca that will snatch away businesses and wealth from the rest of the country, shoring up the Porcupines? enclave.

While most rebel at the notion when I float it, the Free Staters? disgust with the state seems more theoretical and philosophical than experiential?though the desire to more conveniently homeschool their children and have less of their income snatched are motivations for many. Amanda Phillips sums up the FSP spirit that motivates even people who might not, to the normal American?s view, seem particularly oppressed: ?My gosh, I could actually have a society where I could walk around carrying a concealed weapon without having to ask permission, and keep the money I earn, and send my daughter to a private school that?s reasonably priced, and live in a world where what women do with their own bodies is their own business? When I see this vision of what could be, now that there is a real chance it could happen, I can?t sit by and watch it happen without me.?

?Migrating for Freedom?

The major problem with the notion that the FSP will bring liberty in our times to New Hampshire is that many of America?s tyrannical impositions, from the most evil to the most petty, come from the federal level. And the FSP is very vocally not a secessionist movement.

Thus, what the FSP can achieve even in a best-case scenario is limited. We have seen what the feds think of states that try to relax their drug laws. How would the No Child Left Behind president deal with an attempt to end mandatory public schooling? Or to avoid or evade the enforcement of regulations from the Occupational Safety and Health Administration, the Food and Drug Administration, the Federal Trade Commission, or the Federal Communications Commission?or to dodge a new military draft?

In response to the question of whether the FSP idea really can work, Sorens says that in effect it already has?just not with libertarians. Vermont has, since the 1960s, evolved from the home of rock-ribbed Yankee conservatism to the home of Ben & Jerry?s, self-described socialist U.S. Congressman Bernie Sanders, and Howard Dean. This transformation has even inspired a Take Back Vermont counterrevolutionary back-lash. The hippies and the crunchies and the liberals targeted Vermont, Sorens claims, using as evidence an April 1972 Playboy article. That article, written by Richard Pollak, was based on a proposal floated in the Yale Journal of Law and Social Policy by two firebrand law school students named James F. Blumstein and James Phelan.

Blumstein and Phelan wrote, ?What we advocate is the migration of large numbers of people to a single state for the express purpose of effecting the peaceful political take-over of that state through the elective process.? Sound familiar? Like Sorens? original essay, their piece didn?t even name a state. But in the Playboy article, Pollak fingered Vermont as the most appropriate state for ?the nation?s alienated young.?

Blumstein, today a law professor at Vanderbilt University, is loath to credit his idea or Pollak?s expansion of it with Vermont?s change. He rightly notes that he has no evidence the piece was a direct influence on anyone, much less tens of thousands. By contrast, Sorens, with the FSP?s database, will have a better idea of whether any change in New Hampshire?s future can be attributed to his proposal.

?The whole American experience is based on migrating for freedom,? Sorens rightly notes. While the corpses of many attempts at intentional communities dot the American landscape, the FSP idea is more ecumenical and less insistent on a specific central location (New Hampshire is a state, not a commune) and way of life. The example of the Mormons could cheer the Porcupines: They migrated en masse to a state and succeeded in dominating its political culture for the long haul. But when they rubbed up too hard against the feds, they abandoned one of their key practices, polygamy.

A similar fate for the Free Staters seems likely?perhaps some significant moves in tax and service cutting in New Hampshire, but a fully libertarian society stillborn under the watchful eye of federal tyranny. And this is assuming the Free Staters actually summon the 20,000.

A Porcupine get-together in the kinder month of June, one I was not able to attend, attracted 300 people, 10 times as many as showed up in February in Danbury. Yet there?s been little growth in the number of FSP pledgers since New Hampshire was chosen last year. Sorens blames a downturn in press coverage; he hopes that with more funding for advertising and outreach the Free Staters can break out of the slump. But it may well be that libertarian separatism is still too eccentric to win over tens of thousands.

Still, history is not always predictable, and funny things can happen when people have something specific to rally round. The FSP experiment is opening up paths of communication to, and between, people who have not normally been likely to embrace the libertarian political message. Ryan Lazarotta, a gay man and a personal stylist, is the FSP coordinator for the Las Vegas area. He and his partner already have their New Hampshire move mapped out. Lazarotta, who had never had anything to do with libertarianism, stumbled upon the FSP on the Web and found it made sense of a lot of things.

Lazarotta had been on his own since age 14, his unpleasant experience in public schools ?100 percent? responsible for his leaving home so young. Now he wants to tell his fellow gays that they don?t need to be slaves on a Democratic plantation. ?I want to spread the idea of freedom among my peers,? he says. ?As far as FSP is concerned, [gay men] should be a great target. They are mobile, often self-generate their income, don?t necessarily want to have to pay to educate other people?s children,? and when it comes to the legal status of their intimate relationships, are faced daily with insults based on unequal legal treatment.

?I?m new to this whole frame of thought,? Lazarotta says, ?and through personal meetings I?m building comfort levels and trust between groups that don?t necessarily encounter each other on a regular basis. As Democratic-leaning as I?d been, I wasn?t comfortable, say, with gun rights people. But when we all meet at a table we realize we all can get along great and have a common denominator in what we are trying to achieve. Our special interests might be related to our personal lives, but our greater ambitions and fates have us wrapped up together.?

That sort of common understanding might not be as romantic as life on a liberated oil platform, free as the sea breezes that blow. But it?s a vital step toward making the many sorts of people who are disenchanted with statism realize that they already live together on an island, one that will be liberated only if they fight together.

Senior Editor Brian Doherty is the author of This Is Burning Man (Little, Brown).

In Ohio, and across the country, homeowners are battling cities and developers conspiring to seize their property.

From his office at the top of Rookwood Tower, the seven-story, glass-and-steel building that his family?s real estate company built, Jeffrey Robert Anderson Jr., or J.R. as he is known here in Norwood, Ohio, can easily survey his empire. Directly below the tower and its 185,000 square feet of professional and financial services offices is Rookwood Pavilion, 23 acres of shopping and eating. A little farther to the left is Rookwood Commons -- not, Anderson advises me, a shopping plaza, but a "lifestyle center" containing a Gap, Ann Taylor, and 46 of the other usual suspects. This former brownfield, abandoned when a machine tool factory left Norwood, is now the premier shopping destination in Greater Cincinnati, if not all of Ohio, according to anyone around here that you ask. It?s an impressive sight, and perched high up in his well-appointed office with its sculptures and paintings and enormous glass-topped table, you might believe that this tall and fit 32-year-old with flaxen hair and bright blue eyes rules over all that he sees, or at least all that lies this side of the interstate.

And he would, were it not for the 13-acre, triangular spit of land directly below the tower. There, under the spruce and maple trees, are the asphalt-shingled roofs of a tidy neighborhood of modest houses. Bounded by the Cincinnati city line to the east and Rookwood to the south, and cut off from the rest of Norwood by an interstate highway, these 97 homes and small businesses are glaringly out of place, a mid-20th-century remnant amid all this 21st-century glitz. They?re also in Anderson's way. He wants to expand the Rookwood complex, but he has to buy and raze all these houses first, and while most property owners have eagerly accepted his offer to buy their houses at a premium price, five have refused. And so the $125 million-plus project, known as Rookwood Exchange, slated to be under construction by now, is at a dead standstill.

But Anderson has an ace up his sleeve. At his behest, and using his money, the city of Norwood has invoked its powers of eminent domain -- the right, granted by the Takings Clause of the Fifth Amendment to the Constitution, of a government to seize private property and turn it to public use -- to condemn a neighborhood and order residents out of their homes. Norwood is not the first city to act as a real estate broker whose offer can?t be refused, nor is Anderson the first businessman to benefit from this kind of largesse. A 1954 Supreme Court decision stating that the economic benefits of private development are a legitimate "public use" has forged an unholy alliance between cities strapped for cash and entrepreneurs promising economic bounty. (Anderson, for example, forecasts that Rookwood Exchange will net Norwood, a city with an annual budget of $18 million, between $1.5 and $3 million in annual taxes.) Struggling cities have placed their urban renewal hopes in the hands of developers like Anderson, who in turn rely on governments to assemble the parcels for their projects.

According to the Institute for Justice (IJ), a public-interest law firm, this is a growing trend. The institute analyzed eminent domain cases between 1998 and 2002 and found more than 10,000 instances where local governments had attempted to use a power once reserved for indisputably public projects like highways and railroads to obtain properties for private development projects such as box stores and golf courses.

No properties are off-limits -- working-class communities, ski chalets, and one-tenth of San Jose, California, have all been targets of condemnation proceedings on behalf of enterprises as varied as casinos, Costco, and the New York Times -- and no one has yet been able to thwart this newly privatized version of eminent domain. But by litigating against what it calls "eminent domain abuse," the IJ has succeeded in creating enough disarray in state courts to achieve its ultimate goal: convincing the Supreme Court to revisit the issue. This spring, for the first time in 50 years, the court will address the parameters of eminent domain, and the institute hopes the justices will rein in the private use of what the court itself once called government?s "despotic power."

"It was the day before Mother?s Day in 2002," Joy Gamble says. "They said they were going to build this fabulous project, and we were going to be gone. The roof fell in." The Gambles, who have lived in Norwood their entire lives, made an immediate decision. They weren?t selling, no matter what price Anderson was paying. "And start life all over again?" Carl adds. "We started here, we raised two kids here, we finish up here."

"Here" is the Gambles' two-story stucco home a few doors up tree-lined Atlantic Avenue from its terminus at the I-71 off-ramp. An American flag is planted by the brick front stairs, next to a hand-lettered sign that says, "IF YOU WANT THIS PROPERTY YOU SHOULD HAVE BOUGHT IT IN 1969." Inside, a hunting supply catalog sits on the coffee table, a Ronald Reagan calendar hangs from the kitchen wall, and vivid tapestries and paintings of stags and partridges give the overall effect of Field & Stream on acid. The Gambles, who won?t give their ages ("I forgot," says Carl; "I don?t tell," says Joy), appear to be in their 70s, and they speak in clipped sentences inflected with the local twang. "The first time we had contact with these people," Joy tells me, "[Anderson] wanted to meet with us. I said, 'We don?t want to sell.' He said, 'Thank you.' I said, 'You're welcome.' I hung up. Very nice." Joy goes on to list several other unsuccessful attempts, noting that Anderson?s people were always extremely polite.

But what the Gambles didn't know was that in January 2002, before he called them or any of their neighbors, Anderson had asked the City Council to undertake an urban renewal study, the prerequisite to condemning properties. "I figured we wouldn?t have to go through with it," Anderson says. "Just pass the urban renewal study and get things rolling." When he built Rookwood Tower back in 1997, Anderson had easily convinced the city to authorize such a study -- although he was ultimately able to assemble the necessary properties on his own. But in 2003, three years after he was indicted for corruption, the longtime mayor -- whom Anderson had given $23,000 in campaign contributions ("an astronomical sum around here," says one city official) and an undisclosed amount toward legal fees -- resigned. The council, perhaps eager to seem less cozy with its largest private taxpayer, had earlier told Anderson "to go out and pound the doors, go assemble as many houses as possible," he says. "Once I?m completely at a stalemate, then come back and discuss urban renewal."

While Anderson was going door to door in the early summer of 2002, so was Joe Horney, a 35-year-old construction manager. Sitting on the Gambles' couch, bouncing his two-year-old daughter on his lap, Horney proudly recounts how he used an inheritance to buy a two-family house across from the Gambles when he was 21. When he heard the news, he says, "I decided to go out and meet the neighbors. I found out from a lot of people that they were perfectly happy here, they'd like to stay. So we started a petition." At first, about half of the homeowners vowed not to sell. But in September, Anderson and his partners announced their terms: They'd buy everyone's house at a 35 percent premium over its fair market value, but only if they had all the neighbors under contract. If any residents held out, the developers would ask the city to condemn those properties, and a jury would decide the price. Throughout the fall, many of Horney's erstwhile allies signed contracts. In the meantime, Anderson eliminated from his plans a 28-house section of the neighborhood in which resistance was most concentrated, and by year?s end, with 5 of the remaining 69 owners still refusing to sell, Anderson had his stalemate -- in no small part, as it turns out, because condemnation had been in the air all along. "Where I made my decision is when eminent domain was threatened from day one," says Horney. "Once they threatened my rights, my decision was made."

The City Council authorized the urban renewal study, which Anderson paid for, in April 2003. Citing certain facts -- small driveways, narrow streets, lots that don't conform to current zoning regulations, houses that are more than 40 years old, a neighborhood subject to all the light and noise and traffic that progress (much of it Rookwood-related) has brought -- the study declared the neighborhood blighted and thus eligible to be seized, emptied, and razed.

Standing in the Gambles' tranquil back yard, with its lilacs and bird feeders, it's hard to understand how anyone could think this property was blighted. Horney points out that by the study's criteria, nearly anyone's home could be taken by the government. "You could call the White House blighted because it's over 40 years old, it's got a lack of parking, it's surrounded by commercial development. I'm sure there is noise. If you tore it down and put in a big office building, certainly it would generate more taxes than Mr. Bush living there." The City Council proceeded to condemn the five properties not under contract with Anderson. According to Mayor Tom Williams, they took this action reluctantly, partly to secure tax revenues for the city. "I was a cop for 34 years, got shot once and shot people twice," Williams says. "It's the same with this thing. You hate to pull the trigger, but sometimes it?s a necessity."

When Institute for Justice lawyers Scott Bullock and Dana Berliner first visited Norwood in December 2002, they were pleased with what they saw: "a classic mixed-use neighborhood, in perfectly fine condition," as Bullock puts it. That boded well for the institute -- which Bullock describes as an "unabashedly libertarian" organization and which gets much of its funding from wealthy opponents of big government like energy magnates David and Charles Koch -- and its overall goal of reversing what it sees as a disastrous half-century of eminent domain jurisprudence.

Governments have always taken land on behalf of private interests; owners of mines and railroads relied heavily on condemnations for their rights of way, which were granted because, as one Pennsylvania court put it, "the necessities of a great public industry, which although in the hands of a private corporation, [serve] a great public interest." But in Berman v. Parker, a 1954 case, the Supreme Court ruled that the District of Columbia could seize a fully functional store in a blighted neighborhood on the grounds that, as Justice William O. Douglas wrote in the unanimous opinion, "It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." It was not up to the courts to insist "that public ownership is the sole method of promoting the public purposes of community redevelopment projects." Legislatures, in other words, were free to determine -- as the Norwood City Council did -- that one private use of a property was better for the overall community than another, and to use eminent domain to enforce this finding.

According to the IJ?s Berliner, the Berman decision has devolved into a license for cities to "rent out" their eminent domain powers to private developers, with bogus blight designations providing the legal cover. But Jason Jordan, a government affairs director at the American Planning Association, sees the decision as underpinning the "hottest" trend in urban renewal: replacing economically obsolete neighborhoods with large-scale, tax-generating developments like Rookwood Exchange. "Eminent domain is an important tool for communities interested in revitalizing themselves," Jordan told me, and, according to Jeffrey Finkle, head of the International Economic Development Council, it's also a needed tool for reducing sprawl. "Unless we want to pave over all the land outside cities, we have to be able to do these projects inside the urban ring. How can we reposition cities if they don?t have the power to acquire private land?" The ability to team up with developers is indispensable to this agenda, Finkle adds. "Communities have to respond to market opportunities," he says. "If you have a developer willing to invest millions of dollars, it?s important to make that happen."

Rick Dettmer, who runs Norwood?s one-man municipal development office out of the basement of City Hall, says this is precisely why Norwood couldn't turn Anderson away. "The reality is that you need to rely on developer interest in order to facilitate projects. We're not paying for this party." If he were, Dettmer says he might throw it elsewhere -- perhaps in Norwood's decaying downtown, less than a mile from the Rookwood complex. But Norwood, which has suffered two decades of factory closings, and which has a $1.5 million budget deficit, desperately needs this party, wherever it is held.

Many American cities are in a similar predicament, and in the wake of Berman and related state and federal court decisions, cities and entrepreneurs have worked out an elaborate courting ritual in which local governments offer up their eminent domain authority while developers tout the economic benefits of their projects to the electorate. "All the developer has to do," says the IJ?s Bullock, "is to convince the city that it?s good for them and that he will pay for it, and the city will start taking away people?s property." He adds that cities often offer more than condemnations. "Eminent domain is part of a whole set of incentives -- tax breaks and deferrals and other public subsidies -- that add up to massive corporate welfare. Often the numbers fail to live up to expectations. Jobs don't materialize or the economic benefits don?t outweigh the subsidies or the drain on public services that the development creates." When this happens, Bullock says, cities are left holding the bag.

The IJ took on its first eminent domain case in 1996, winning a favorable ruling for an elderly homeowner who refused to sell her Atlantic City property for a Donald Trump casino. "After that decision, we were swamped with phone calls," Bullock recalls, "and we started to think that courts might be willing to revisit this issue." The IJ has since taken on several cases nationwide, and saw Norwood -- with its unblighted neighborhood, its developer-driven condemnations, and its questionable public use -- as another opportunity to illustrate to a court how wrongheaded the private use of eminent domain is. An Ohio judge, however, was unswayed, ruling in June that although the neighborhood was not blighted, it was "deteriorating," and on these grounds, Norwood could go ahead and condemn the holdouts' properties; they are appealing.

In the meantime, a series of jury trials will decide the value of the five condemned properties. (In September, in the first of these trials, Horney?s house was valued at $233,000, money that, he says, "I hope I never see.") But developments elsewhere might make these trials irrelevant. In August 2004, the Michigan Supreme Court invalidated its 1981 landmark Poletown v. Detroit decision, which had determined that "one entity's profit maximization contributed to the health of the general economy." Stating that "Poletown's 'economic benefit' rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity," the court refused to allow Wayne County to condemn land for an industrial park. "State courts from Nevada to Connecticut have relied on Poletown in upholding condemnations," Berliner said. "Now the same case will work for our side."

Add this case to those roiling communities across the country, and you have the kind of confusion in lower courts that begs for clarification from the U.S. Supreme Court. And indeed, shortly after the Poletown decision, the court agreed to hear another IJ case, in which the city of New London, Connecticut, condemned an unblighted neighborhood in order to make way for a hotel and condominium complex. Bullock hopes the Supreme Court will revisit the scope of the Berman decision, and rein in the privatization of eminent domain.

Out here on Edwards road, yellow signs bearing messages like "HELD HOSTAGE" and "WE SUPPORT ROOKWOOD EXCHANGE" sprout like dandelions from front lawns, and a king-size bedsheet banner hanging from Sandy Dittoe's pink stucco one-story declares, "64 OF 65 RESIDENTS WANT OUT. I AM ONE OF THEM." Dittoe bought her house for $82,000 seven years ago, and she's almost completely rehabbed it since. In 2002, speculating on Anderson's plans, she bought a house around the corner, which she rents out. When Anderson offered her $175,000 for each property, "it was a godsend," she told me. "I was thrilled." She began to make plans to move and to pay off the loan for her Northern Kentucky nightclub. But she has to wait for Anderson to make deals with all her neighbors before she'll receive a penny.

In the meantime, Dittoe's in limbo -- a maddening situation that she blames on her holdout neighbors. "Sure I'm pissed. They're screwing everybody. I've been stuck in a house for two years. There's no point in putting any more money into it, but I still have to live here," she says, pointing out the unfinished trim in her kitchen and the place where she left off putting purple paint on a bedroom ceiling. Her neighbor, Bill Pierani, a part-time security guard for the Cincinnati Reds, agrees. "We'd have been out of here years ago if it wasn?t for them."

Pierani and Dittoe are glad to show me evidence of "blight": the streaks of grime in eaves; an overgrown back yard, home to rats and snakes; the foundations cracked, they say, by the heavy truck traffic; the "foot traffic" and the "element" it brings in; the guys -- "I won?t tell you what color they were," Pierani says -- who broke into someone's house. They point out the oil change place and the muffler shop down the street and describe how they've long wanted to get away from these nuisances -- although there's little evidence that they or their neighbors tried to sell their homes or otherwise flee the neighborhood before Rookwood Exchange came along. Pierani compares the neighborhood, in which he has lived for nearly all of his life, to the cancer he once had. "The job is to go in and cut it off completely. Not to keep hacking at it."

At a meeting the previous night, the residents' impatience turned on Anderson's lawyer, who assured them that the end was in sight. This statement left resident Walter Sims hopping mad. "That lawyer pissed me off because he stood up there and misled these people," Sims, who is settled into his rocker on the front porch, says in his Kentucky drawl. "He knows these people" -- he points to a holdout's house next door -- "ain?t gonna ever sell to him. But he?s relying on the city to do it for him in court. And he knows that until all these appeals are resolved, they can't do nothing. You know how slow the judicial system is? It takes them months to wipe their a$$."

But the residents reserve most of their seething fury for the holdouts, and when Pierani says, "Twenty-five years ago, there would have been a homicide by this point," it's not clear if he's nostalgic or relieved. When Sims says, "I think people are mad and disgusted because they ain't got their money. Why haven't you done something by now to get us the money?" you feel how ugly things might get. And when a man smoking a cigarette on his porch first refuses to talk to you because "the papers always get this story wrong," and then calls you back to say, "Wait a minute. You can quote me on this. f*ck the Gambles. Yeah. f*ck the Gambles, and throw Joe Horney in there, too," you're pretty sure things already have.

In this kind of atmosphere, it's no surprise that the residents don't believe that the Gambles and the others are standing on principle. Explanations vary -- some think that they're angling for a better price, others that they're just stubborn -- but most people seem to agree with Dittoe's assessment that "this project is going to benefit everyone, all the residents here and the whole city." She adds, "There's more to it than just what these people want." But whatever NIMBY concerns may have motivated the holdouts in the first place, they have become galvanized by the large-scale implications of their battle. "What I want to protect is not just myself, but virtually everyone else in the USA from having their constitutional rights undermined," says Horney. "I mean, this is the land of the free and the home of the brave. We're allowed to go out and buy property, and that's being taken away." As they dig in for the appeals, it's clear that these folks are in it for the long haul, that, even with his rented eminent domain powers, Anderson has a lengthy wait before he can extend his empire into this neighborhood. "He can have the house when we're on our deathbed," says Carl Gamble. "Not a minute before."

Gary Greenberg is a psychotherapist, college professor of psychology, and occasional journalist. His writing on science and public policy has appeared in The New Yorker, Rolling Stone, and Harper's_________________

HON. RON PAUL OF TEXASBEFORE THE US HOUSE OF REPRESENTATIVES INTERNATIONAL RELATIONS COMMITTEE January 6, 2005

Government IDs and Identity Theft

Mr. Speaker, today I introduce the Identity Theft Prevention Act. This act protects the American people from government-mandated uniform identifiers that facilitate private crime as well as the abuse of liberty. The major provision of the Identity Theft Prevention Act halts the practice of using the Social Security number as an identifier by requiring the Social Security Administration to issue all Americans new Social Security numbers within five years after the enactment of the bill. These new numbers will be the sole legal property of the recipient, and the Social Security administration shall be forbidden to divulge the numbers for any purposes not related to Social Security administration. Social Security numbers issued before implementation of this bill shall no longer be considered valid federal identifiers. Of course, the Social Security Administration shall be able to use an individual's original Social Security number to ensure efficient administration of the Social Security system.

Mr. Speaker, Congress has a moral responsibility to address this problem because it was Congress that transformed the Social Security number into a national identifier. Thanks to Congress, today no American can get a job, open a bank account, get a professional license, or even get a driver's license without presenting his Social Security number. So widespread has the use of the Social Security number become that a member of my staff had to produce a Social Security number in order to get a fishing license!

One of the most disturbing abuses of the Social Security number is the congressionally-authorized rule forcing parents to get a Social Security number for their newborn children in order to claim the children as dependents. Forcing parents to register their children with the state is more like something out of the nightmares of George Orwell than the dreams of a free republic that inspired this nation's founders.

Congressionally-mandated use of the Social Security number as an identifier facilitates the horrendous crime of identity theft. Thanks to Congress, an unscrupulous person may simply obtain someone's Social Security number in order to access that person's bank accounts, credit cards, and other financial assets. Many Americans have lost their life savings and had their credit destroyed as a result of identity theft. Yet the federal government continues to encourage such crimes by mandating use of the Social Security number as a uniform ID!

This act also forbids the federal government from creating national ID cards or establishing any identifiers for the purpose of investigating, monitoring, overseeing, or regulating private transactions among American citizens. At the very end of the 108th Congress, this body established a de facto national ID card with a provisions buried in the ?intelligence? reform bill mandating federal standards for drivers? licenses, and mandating that federal agents only accept a license that conforms to these standards as a valid ID.

Nationalizing standards for driver's licenses and birth certificates creates a national ID system pure and simple. Proponents of the national ID understand that the public remains wary of the scheme, so proponents attempt to claim they are merely creating new standards for existing state IDs. However, the ?intelligence? reform legislation imposed federal standards in a federal bill, thus creating a federalized ID regardless of whether the ID itself is still stamped with the name of your state. It is just a matter of time until those who refuse to carry the new licenses will be denied the ability to drive or board an airplane. Domestic travel restrictions are the hallmark of authoritarian states, not free republics.

The national ID will be used to track the movements of American citizens, not just terrorists. Subjecting every citizen to surveillance diverts resources away from tracking and apprehending terrorists in favor of needless snooping on innocent Americans. This is what happened with "suspicious activity reports" required by the Bank Secrecy Act. Thanks to BSA mandates, federal officials are forced to waste countless hours snooping through the private financial transactions of innocent Americans merely because those transactions exceeded $10,000.

The Identity Theft Prevention Act repeals those sections of federal law creating the national ID, as well as those sections of the Health Insurance Portability and Accountability Act of 1996 that require the Department of Health and Human Services to establish a uniform standard health identifier--an identifier which could be used to create a national database containing the medical history of all Americans. As an OB/GYN with more than 30 years in private practice, I know the importance of preserving the sanctity of the physician-patient relationship. Oftentimes, effective treatment depends on a patient's ability to place absolute trust in his or her doctor. What will happen to that trust when patients know that any and all information given to their doctors will be placed in a government accessible database?

By putting an end to government-mandated uniform IDs, the Identity Theft Prevention Act will prevent millions of Americans from having their liberty, property, and privacy violated by private and public sector criminals.

In addition to forbidding the federal government from creating national identifiers, this legislation forbids the federal government from blackmailing states into adopting uniform standard identifiers by withholding federal funds. One of the most onerous practices of Congress is the use of federal funds illegitimately taken from the American people to bribe states into obeying federal dictates.

Some members of Congress will claim that the federal government needs the power to monitor Americans in order to allow the government to operate more efficiently. I would remind my colleagues that, in a constitutional republic, the people are never asked to sacrifice their liberties to make the jobs of government officials easier. We are here to protect the freedom of the American people, not to make privacy invasion more efficient.

Mr. Speaker, while I do not question the sincerity of those members who suggest that Congress can ensure that citizens' rights are protected through legislation restricting access to personal information, the only effective privacy protection is to forbid the federal government from mandating national identifiers. Legislative "privacy protections'' are inadequate to protect the liberty of Americans for a couple of reasons.

First, it is simply common sense that repealing those federal laws that promote identity theft is more effective in protecting the public than expanding the power of the federal police force. Federal punishment of identity thieves provides cold comfort to those who have suffered financial losses and the destruction of their good reputations as a result of identity theft.

Federal laws are not only ineffective in stopping private criminals, but these laws have not even stopped unscrupulous government officials from accessing personal information. After all, laws purporting to restrict the use of personal information did not stop the well-publicized violations of privacy by IRS officials or the FBI abuses of the Clinton and Nixon administrations.

In one of the most infamous cases of identity theft, thousands of active-duty soldiers and veterans had their personal information stolen, putting them at risk of identity theft. Imagine the dangers if thieves are able to obtain the universal identifier, and other personal information, of millions of Americans simply by breaking, or hacking, into one government facility or one government database?

Second, the federal government has been creating proprietary interests in private information for certain state-favored special interests. Perhaps the most outrageous example of phony privacy protection is the ?medical privacy'? regulation, that allows medical researchers, certain business interests, and law enforcement officials access to health care information, in complete disregard of the Fifth Amendment and the wishes of individual patients! Obviously, "privacy protection'' laws have proven greatly inadequate to protect personal information when the government is the one seeking the information.

Any action short of repealing laws authorizing privacy violations is insufficient primarily because the federal government lacks constitutional authority to force citizens to adopt a universal identifier for health care, employment, or any other reason. Any federal action that oversteps constitutional limitations violates liberty because it ratifies the principle that the federal government, not the Constitution, is the ultimate judge of its own jurisdiction over the people. The only effective protection of the rights of citizens is for Congress to follow Thomas Jefferson's advice and "bind (the federal government) down with the chains of the Constitution.''

Mr. Speaker, those members who are not persuaded by the moral and constitutional reasons for embracing the Identity Theft Prevention Act should consider the American people?s opposition to national identifiers. The numerous complaints over the ever-growing uses of the Social Security number show that Americans want Congress to stop invading their privacy. Furthermore, according to a survey by the Gallup company, 91 percent of the American people oppose forcing Americans to obtain a universal health ID.

In conclusion, Mr. Speaker, I once again call on my colleagues to join me in putting an end to the federal government's unconstitutional use of national identifiers to monitor the actions of private citizens. National identifiers threaten all Americans by exposing them to the threat of identity theft by private criminals and abuse of their liberties by public criminals, while diverting valuable law enforcement resources away from addressing real threats to public safety. In addition, national identifiers are incompatible with a limited, constitutional government. I, therefore, hope my colleagues will join my efforts to protect the freedom of their constituents by supporting the Identity Theft Prevention Act.

TrackBack Print E-mail TalkBack When Robert Moran drove back to his law offices in Rome, N.Y., after a plane trip to Arizona in July 2003, he had no idea that a silent stowaway was aboard his vehicle: a secret GPS bug implanted without a court order by state police.

Police suspected the lawyer of ties to a local Hells Angels Motorcycle Club that was selling methamphetamine, and they feared undercover officers would not be able to infiltrate the notoriously tight-knit group, which has hazing rituals that involve criminal activities. So investigators stuck a GPS, or Global Positioning System, bug on Moran's car, watched his movements, and arrested him on drug charges a month later.

A federal judge in New York ruled last week that police did not need court authorization when tracking Moran from afar. "Law enforcement personnel could have conducted a visual surveillance of the vehicle as it traveled on the public highways," U.S. District Judge David Hurd wrote. "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway."

Last week's court decision is the latest to grapple with the slippery subject of how to reconcile traditional notions of privacy and autonomy with increasingly powerful surveillance technology. Once relegated, because of their cost, to the realm of what spy agencies could afford, GPS tracking devices now are readily available to jealous spouses, private investigators and local police departments for just a few hundred dollars.

Not all uses are controversial. Trucking outfits use GPS boxes to keep track of their drivers' locations, and companies sell software to dispatchers that instantly calculates which taxi is closest to a customer. OnStar uses GPS tracking to provide roadside assistance to owners of many General Motors vehicles.

What's raising eyebrows, though, is the increasingly popular law enforcement practice of secretly tagging Americans' vehicles without adhering to the procedural safeguards and judicial oversight that protect the privacy of homes and telephone conversations from police abuses.

"I think they should get court orders," said Lee Tien, staff counsel for the Electronic Frontier Foundation. "We're in a world where more and more of our activities can be viewed in public and, perhaps more importantly, be correlated and linked together."

"We're in a world where more and more of our activities can be viewed in public and...be correlated and linked together." --Lee Tien, staff counsel, EFFGPS devices work by listening for radio signals from satellites and calculating how long the signals take to arrive.

The result of that calculation provides a highly accurate estimation of latitude and longitude. Depending on the type of GPS tracker, that information is beamed back to an eavesdropper's computer through the cellular network or quietly recorded and divulged when the device is retrieved a few days or weeks later.

Voluntarily agreeing to automotive GPS tracking can be a bargain for some consumers. Progressive Casualty Insurance began a pilot project

in Minnesota last year that embeds GPS devices in a customers' vehicles and offers insurance discounts based on where and when cars are driven.

Norwich Union, the United Kingdom's largest auto insurer, has experimented with a similar "pay as you drive" program involving 5,000 customers. Hertz has implanted GPS trackers in all of its rental cars, and trucking companies have used similar systems for years.

"If something's not totally secret, you don't have a reasonable expectation of privacy." --Dan Solove, law professor,George Washington UniversityGPS tracking systems are becoming cheap enough--the prices have dropped by about 50 percent in the last few years--that they've become attractive methods for tracing the whereabouts of teenagers and spouses. In 2003, South Carolina police thought they had discovered a bomb under a vehicle, but it turned out to be a GPS bug planted by a man's wife. In another case, a man in Colorado was convicted of tracking his wife with a GPS bug after she began divorce proceedings against him.

Solving crimesGPS devices have been used to solve crimes from the petty to the heinous. Massachusetts police recently nabbed the driver of a snow removal truck who exposed himself at a Dunkin' Donuts, thanks to the Massachusetts Highway Department's requirement that state contractors outfit their trucks with GPS locators.

In 2000, when William Bradley Jackson called Spokane County, Wash., police to report that his daughter had vanished from the front yard that morning, detectives were immediately suspicious. Jackson seemed unusually nervous, and blood stains were discovered on his daughter's sheets.

The tactic worked; the GPS bugs led police to Valiree's shallow grave in a remote, dense forest about 50 miles from Spokane. The case ended in a murder conviction and 56-year prison sentence.

Complicating the privacy risks of tattletale cars is a pair of U.S. Supreme Court cases decided two decades ago. Those cases, U.S. v. Knotts and U.S. v. Karo, established that police don't need court approval to track suspects through a crude radio beeper.

In 1999, the 9th Circuit Court of Appeals invoked that logic when deciding that federal agents did not need a court order to slap a GPS tracker on a truck owned by a man suspected of growing marijuana. "In placing the electronic devices on the undercarriage of the Toyota 4Runner, the officers did not pry into a hidden or enclosed area,"

the court ruled, saying the bug did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures.

Privacy intrusion?A handful of courts have veered in the other direction, saying GPS technology is so powerful and can reveal so much about a person's life that it requires strict judicial oversight.

The "use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government," the Washington Supreme Court said in the Jackson murder case in September 2003. "Citizens of this state have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen's vehicle...A warrant is required for installation of these devices."

Some legal scholars fear that when the U.S. Supreme Court eventually weighs in on GPS tracking, it will side with police over privacy. "Unless it changes its view, it's unlikely that the court will think the same way as the Washington Supreme Court," said Dan Solove, a law professor at George Washington University. "The court has a very narrow and crabbed understanding of privacy. If something's not totally secret, you don't have a reasonable expectation of privacy."

GPS tracking--even when bugs are installed by police armed with a court order--can be imperfect. One bug used by police to track convicted murderer Scott Peterson sometimes developed glitches that showed him driving at about 30,000 miles per hour. Judge Alfred Delucchi ruled the data could be admitted during Peterson's trial, which appears to have been the first such decision in California.

Even with the occasional glitches, police see great potential in GPS tracking systems, like OnStar, that are built into more expensive cars--and that most people believe will be activated only in emergencies. In one North Carolina case, police used the built-in OnStar system in a 2000 Chevrolet Suburban truck to locate it and arrest the driver, who had bought it with a fake certified check.

An even more creative method of vehicle tracking arose when the FBI used such a system for audio eavesdropping. OnStar and other remote assistance products permit passengers to call an operator for help in an emergency. The FBI realized the feature could be useful for bugging a vehicle and remotely activated it to eavesdrop on what passengers were saying. (The 9th Circuit shot down that scheme in 2003, on the grounds that it rendered the system useless in emergencies.)

Long before Waco I could be counted among those who think of the BATF (now BATFE) as a police agency in search of a police state. There are a lot of grim stories about these guys circulating in shooting circles; this piece illustrates one of their tactics.

Imagine being a law abiding citizen and having a federal agency try to turn your way of making a living against you with bait and switch and other deceitful tactics. A shameful story that makes me wonder about the ones I don't hear.

Gun Dealer Not Guilty Tribune Media Group

Last May, federally licensed gun dealer Danny Peterson was arrested for two felony counts of relating to the sale of guns. Peterson, a regular exhibitor at gun shows had worked the "Las Vegas Gun Show" in January.

Eight agents spent three days canvassing the January show. They made a total of three arrests.

A female and two male BATF agents targeted Peterson's booth. During testimony, the female agent, who made contact with Peterson earlier in the show, denied being a part of the meeting during which firearms were purchased. A video shown to the jury revealed her presence. Peterson was charged with 'Knowingly Making False Entry Into Records' and 'Unlawful Selling of a Firearm to out-of-state Resident'.

Peterson's attorney, Robert Glennen III, presented a defense, which included accusations of entrapment by Bureau of Alcohol, Tobacco and Firearms (BATF) agents.

Entrapment, as a matter of law, requires a showing that the government furnished the opportunity to break the law, and that Defendant was not predisposed to violate that law.

Additionally, the BATF agents committed four felonies in order to perfect a gun transaction with Peterson. It is unlawful for a resident from another state to purchase a firearm in Nevada. The female BATF agent, who pretended to be marrying a Nevada resident BATF agent, told Peterson she wanted to purchase three guns as wedding presents for her Nevada husband. Peterson told her earlier that day that the Nevada fianc?e would have to purchase the gun because it was meant for him. The BATF then brought in a third California agent to actually exchange the money for the three wedding presents. In order to purchase the guns, the agents also falsified two documents.

The video of the transaction reveals Peterson specifically telling the agents he would only sell them guns, "As long as it's legal." He also specifically asked the Nevada agent if he was purchasing the guns, to which the Nevada agent stated 'yes'.

On December 15th, a federal jury returned a verdict of Not Guilty on both counts. Peterson, 46, never had any run-ins with the law. He has held a Federal Firearms License to sell guns for fifteen years.

Peterson's attorney, Robert Glennen, commented, "All the new terrorist laws are making it tougher to see justice done in cases like this. Luckily, the jury believed Danny Peterson, and did the right thing by acquitting him."

FBI Computers: You Don't Have Mail By Michael Isikoff and Mark HosenballNewsweek

Feb. 14 issue - The FBI's computer woes got even worse last week when bureau officials were forced to shut down a commercial e-mail network used by supervisors, agents and others to communicate with the public. The reason, sources tell NEWSWEEK, was an apparent "cyberintrusion" by an outside hacker who officials fear had been tapping into supposedly secure e-mail messages since late last year. FBI spokesmen publicly sought to downplay the damage, saying the compromised commercial server?maintained by AT&T?was used exclusively for unclassified and "nonsensitive" communications that did not involve ongoing investigations. One example, they said, was notices from public-affairs offices' fbi.gov addresses to members of the press. But privately, officials were highly concerned?and recently notified the White House. One top FBI official says he regularly used his shut-down fbi.gov e-mail account to send messages to state and local police chiefs. Another source tells news-week that more than 3,000 old and current e-mail accounts were shut down. Others say the same apparently compromised server also provided accounts to other government agencies. Justice Department officials, who launched their own cybercrime investigation into the apparent intrusion, noted that there was no telling the potential damage at this point, given the common tendency for everybody to say too much?including making references to law-enforcement "sensitive" cases?even in theoretically routine e-mails. "This is an eye-opener for all of us," says one FBI official.

The bigger question, sources say, was how the hackers penetrated the bureau's e-mails?and why it took the FBI so long to notify the rest of the government. The FBI e-mail system was erected with firewalls that were supposed to prevent even sophisticated hackers from penetrating. But while officials stressed there was no evidence that the apparent intruder or intruders were part of any terrorist or foreign intelligence organization, the authorities were still baffled as to how they got into the system. According to sources familiar with the investigation, one suspicion is that hackers either used sophisticated "password cracking" software that tries out millions of password combinations or somehow eavesdropped on Internet transmissions. Over the weekend, NEWSWEEK has learned, the Department of Homeland Security posted a computer-security alert to agencies throughout the federal government urging e-mail users to be more careful about choosing their passwords by avoiding obvious clues?like nicknames, initials, children's names, birth dates, pet names or brands of car. "Such information can be easily obtained and used to crack your password," the bulletin states.

The e-mail compromise couldn't have come at a worse time for the bureau. Just last week, the Justice Department inspector-general released a report sharply criticizing the FBI's management of its new Virtual Case File computer system?a $170 million software upgrade that bureau officials now concede they may have to ?scrap. The VCF system was supposed to make it much easier for agents to electronically access vital information relating to ongoing cases in different FBI offices. But the I.G. found that poor planning and ineffective management have resulted in a system that is nearly unworkable. FBI chief Robert Mueller, who sources say has personally briefed President George W. Bush on the matter, took responsibility "at least in part" for the fiasco before a Senate subcommittee. "No one is more frustrated and disappointed than I," he said.

ORLANDO, Fla. -- A police officer twice used a Taser stun device on a drug suspect who was restrained to a hospital bed because the man refused to give a urine sample to medical staff, authorities said.

Antonio Wheeler, 18, was arrested Friday on a drug charge and taken to an emergency room after telling officers he had consumed cocaine, police said.

Because Wheeler said he had used the drugs, Florida Hospital officials wanted a urine sample. A police affidavit said Wheeler wouldn't provide a sample on his own, so workers tried to catheterize him to get one.

The police document said Wheeler was handcuffed to a hospital bed and then secured with leather straps after he refused to urinate in a cup. When medical staff tried to insert a catheter to get the sample, Wheeler refused and began thrashing around, the affidavit said.

At one point, police officer Peter Linnenkamp reported, he jumped on the bed with his knees on Wheeler's chest to restrain him. When Wheeler still refused to let the catheter be inserted, Linnenkamp said he twice used his Taser, which sends 50,000 volts into a target.

"After the second shock (Wheeler) stated he would urinate and calmed down enough to be given the portable urinal," Linnenkamp wrote.

At the request of Police Chief Michael McCoy, the Florida Department of Law Enforcement is investigating the incident.

Linnenkamp, who has more than 18 years on the force, has no history of disciplinary problems, said Sgt. Barbara Jones, a department spokeswoman.

He has been relieved pending the investigation's outcome. Jones said officers in such suspensions usually are paid.

In a Tuesday interview at the Orange County jail, Wheeler acknowledged that he aggressively resisted efforts to insert the catheter because he was scared it would hurt. He said the police officer told him the catheter would be necessary if he wouldn't or couldn't urinate on his own.

"I feel I was basically raped," Wheeler said.

Said Amnesty International USA spokesman Edward Jackson: "If this had taken place in China, it would be an egregious violation of human rights, and the public would be outraged.

"I hope that they don't allow the fact that it happened on U.S. soil deter from the fact that this may very well be a case of torture."

Florida Hospital spokeswoman Melanie Trivento said in a statement Wednesday that hospital officials wouldn't be able to comment on the case until they have thoroughly reviewed it.

"This is a very unusual situation and we are examining all of the circumstances surrounding the incident," the statement said.

Earlier, another hospital spokeswoman, Samantha O'Lenick, said she could not speak specifically about the Wheeler case but said hospital protocol calls for urine samples whenever patients say they have taken drugs or alcohol.

Wheeler was being held on $7,500 bail on charges including possession of cocaine with intent to sell, escape and resisting without violence.

As someone who has given folks grief for tinfoil hat conspiracy twaddle I suppose I'm risking being lumped that category. It freaks me out, however, that the US if devoting vast resources and criminalizing the behavior of a broad swath of its citizens in its pursuit of pot arrests. As far as I'm concerned stuff like this serves as the model for how various government entities can blithely conspire to deprive citizens of freedom in pursuit of a dubious end.

May 10, 2005, 8:08 a.m.The War on PotWrong drug, wrong war.Rich Lowry

As the nation's "drug czar," John Walters is supposed to be saving us from the ravages of hard drugs like heroin and cocaine. At least that was the original sales pitch for the "war on drugs" in the 1980s. But the war has evolved into largely a fight against marijuana, which no one has ever claimed is a hard drug. Walters is nonetheless committed, Ahab-like, to arresting every marijuana smoker in the country whom law enforcement can lay its hands on.

It used to be that drug warriors denied that marijuana was much of a focus for them, because they understandably liked people to think they were cracking down on genuinely dangerous, highly addictive drugs. No more. We are waging a war on pot, a substance less addictive and harmful than tobacco and alcohol, which presumably friends of Walters enjoy all the time with no fear of being forced to make a court appearance.

According to a new report by the Sentencing Project, in a trend Walters heartily supports, annual drug arrests increased by 450,000 from 1990 to 2002. Marijuana arrests accounted for 82 percent of the growth, and 79 percent of that was for marijuana possession alone. Marijuana arrests are now nearly half of all the 1.5 million annual drug arrests. Marijuana-trafficking arrests actually declined as a proportion of all drug arrests during this period, while the proportion of possession arrests increased by two-thirds.

Has the use of other drugs declined, prompting the focus on marijuana? No. According to the Sentencing Project: "There is no indication from national drug-survey data that a dramatic decrease in the use of other drugs led to law-enforcement agencies shifting resources to marijuana. Indeed, there was a slight increase in the use of all illicit drugs by adult users between 1992 and 2001. Over that same period, emergency-room admissions for heroin continued to increase." Drug warriors simply think it's a good thing in and of itself to arrest marijuana smokers.

Their crusade bears little or no connection to law enforcement. Crime generally has been declining from 1990 to 2002, even as pot arrests have increased. Are we to believe that crime is at its lowest rates in 30 years, but the nation is beset by rampaging marijuana smokers who are kept under minimal control only by ever-increasing arrests? Every major county in the country, except Fairfax, Va., saw an increase in marijuana arrests during the past 12 years. That Washington, D.C., suburb has not been notably overrun by hemp-crazed hordes.

The fight against marijuana isn't even working on its own terms. According to the Sentencing Project, since 1992, the price of marijuana has fallen steadily, declining by 16 percent. In 1990, 84.4 percent of high-school seniors said it was easy to get marijuana. In 2002, 87.2 percent said it was easy. Daily use by high-school seniors tripled from 1990 to 2002, going from 2.2 percent to 6 percent ? the same level as in 1975.

As Allen F. St. Pierre, executive director of the pro-decriminalization group NORML, puts it, "Increased arrest rates are not associated with reduced marijuana use, reduced marijuana availability, a reduction in the number of new users, reduced treatment admissions, reduced emergency-room mentions, any reduction in marijuana potency, or any increases in the price of marijuana." Besides that, the war on marijuana is a smash success.

Marijuana is not harmless, and its use should be discouraged, but in the same way, say, smoking a pack of cigarettes a day should be discouraged. The criminal-justice system should stay out of it. Twelve states have decriminalized marijuana to varying degrees, fining instead of arresting people for possessing small amounts. They recognize that ? as the authors of a new study for the conservative American Enterprise Institute argue ? "the case for imposing criminal sanctions for possession of small amounts of marijuana is weak."

John Walters, of course, will have a ready answer for the ineffectiveness of the war on marijuana. It's the answer drug warriors always have ? even more arrests.

? Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

I think their reasons for going after pot users are pretty obvious,the biggest one being that pot smokers are an easy target. There's sodamn many of them and they're easy to find. I think pot is also seenas more of a working-class and "liberal" drug, and that probably has alot to do with it too.

Woof, Just out of curiosity, how do you guys feel about cops who sit outside night clubs, bars and the local watering holes and nab guys for dui as they leave?

Something akin to evolution in action is my feeling. Back in my drug addled youth I dodged my share of cops, Rule 1 was don't do illegal things where they can see you. Outside the bar at closing time, moreover, is often times a dangerous place regardless. If you do get hauled off in cuffs, perhaps you should count it as a cheap lesson.

With that said, I've seen this tactic taken too far. In the 'burb where I grew up there was a bar that opened just over the county line. Annoyed I suspect about missing out on tax revenues as much as anything else the town fathers had the local yokel PD show up in force to pull over anyone leaving the bar most evenings.

Common tactics included an unmarked police car coming up quickly on the rear of a vehicle, if the driver hit his brakes he was pulled over for "improper signaling," or a cop car would pull in front of a car and hit the brakes; when the driver swerved to avoid a collision he was pulled over for "improper lane usage" and so on. After a couple years of these tactics the bar went out of business 'cause no one wanted to run the gauntlet.

IMO the cops more than crossed the line in that instance, but for the most part I've no problem when they go trolling for drunks, though the sobriety checkpoints they've been setting up of late look to me to be a violation of civil liberties.

Yeah, I don't have a problem with cops trolling for drunk drivers outside of bars/clubs, in theory anyway. In practice though, they can't do it for the same reason they can't strip-search everybody who tries to board a plane. The negative effect this would have on many local businesses would outweigh any possible safety gains. It's an unspoken rule that we assume certain risks as the price of an open society with a decently-functioning economy.

Woof, My point was merly, that if you break the law and you do it willingly then you really have no one to blame but yourself.Just like drinking and driving is against the law, so is possessing pot, smoking pot or possesing drug parafinelia(sp).So regardless of what a person may think of the law, its still the law.

In refrence to the Kerryist wrong drug wrong wrong war I dont find that it applies. You simply can not say one illegal substance should be more aggressivly attacked than another. Wouldn't that be the same as a speeding driver saying GEE officer i was onley ten miles an hour over the limit what about the guy who was doing 130 that just flew by me...... Still guilty.

Just to further that thought a bit before i close, i think its totally understated and under reported the abuse of perscription (legal) meds, which have just as high or even higher harmful addictive potentials.

"You simply can not say one illegal substance should be more aggressivly attacked than another. Wouldn't that be the same as a speeding driver saying GEE officer i was onley ten miles an hour over the limit what about the guy who was doing 130 that just flew by me...... Still guilty. "

Well it sure would make sense to me to say that the guy doing 130 should be more aggressively pursued by the police than the guy 10 over the limit. Indeed most police don't bother to ticket the guy doing 10 over , , ,

Similarly it makes sense to me to note that there is a difference between pot and narcotics like coke and heroin.

Woof Guru Crafty, I agree with you totally. However should a guy get a ticket for ten over he really has nothing to complain about hes still illegal. Just the same as the guy who gets pinched for his weed.Iam merly stating the obivous, its the law.I haven't heard of any increase in pot busts, around here or in the state of Ohio. So Iam not sure as to the legitimacy of that claim, Rog made a good point though about the vast numbers of pot smokers.Wouldn't it make more sense that since there are so many of them, that more would get busted, vs hard drug users? A lot of the people i see around here who get popped usually get nabbed when pulled over for some kind of eratic driving behavior, kinda thing, I really don't see the cops busting down the door to nail grandma for smoking her joint while watching the six oclock news.

I wonder if Buzwardo can give any statistical evidence to back up this claim? Maybe he's just blowin smoke? TG

I wonder if Buzwardo can give any statistical evidence to back up this claim? Maybe he's just blowin smoke?

Please refer to the Rich Lowry piece posted above. In it you'll find:

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According to a new report by the Sentencing Project, in a trend Walters heartily supports, annual drug arrests increased by 450,000 from 1990 to 2002. Marijuana arrests accounted for 82 percent of the growth, and 79 percent of that was for marijuana possession alone. Marijuana arrests are now nearly half of all the 1.5 million annual drug arrests. Marijuana-trafficking arrests actually declined as a proportion of all drug arrests during this period, while the proportion of possession arrests increased by two-thirds.

With that said, this thread is titled "Libertarian Themes" so it shouldn't surprise anyone when exercise of government power is questioned here. Do we really want police agencies enforcing every law on the books, and when they do, telling the folks they haul off that, since they broke the law, they had it coming?

The law is often an @$$, the punishment should fit the crime, and the government should have a compelling end before it hauls a citizen off it handcuffs. And if those notions strike you as too radical, start a "Draconian Themes" thread and post your responses there.

Woof buzwardo, I briefly scrolled the fbi.org link and didn't see anything that even remotly eluded to the increase in marijuana busts.Thats ok. You talk of the penalty fitting the crime, in Ohio its a misdemeanor of 100 dollar fine for possesion of 112 grams or less. I don't find that to be extremly harsh . I don't think they haul you away in handcuffs for it either. Pretty sure its just a ticket and on your way type situation.(do you find this harsh?)When you refer to "all" the laws being enforced i asume your speaking of some law written two hundred years ago type thing. Like beating your wife on the county court steps. Then the answer is of course not. If your refering to the laws that everyone is aware of and knows the penaltys for and knows are illegal, like the drug laws. yea i want them enforced.Dosen't my desire to have our drug laws enforced make me as much a liberatarian as your desire to have them challenged and broken?If not then please give me your definition of a libertarian. TG

breaks down crime by state and category. Folks like those at the Sentencing Project, whose data you did not comment on, then take that information, render and analyze it. Seeing how I don?t have the time, motivation, or mathematical skills to run my own data analysis, I?m content to use the results of those who do, at least until their analysis is thrown into question. Do you dispute the Sentencing Project?s data?

An aside: I note often when I post a piece I?m then asked to account for the author?s methodology. Sometimes the germane aspects are easily gleaned from the piece itself, other times a second raw data source isn?t hard to find, while in other instances the post is clearly an opinion piece lending itself only to speculation rather than empiric debate.

Bottom line is I?m just another Internet wanderer posting his occasional warblings. If someone wants to pay me to I?d be glad to repost cited material, chase down primary sources, and attempt to interview authors. Until someone with the requisite magnanimity arises, though, I?m not inclined to put more effort into answering questions than the folks who post ?em do.

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Thats ok. You talk of the penalty fitting the crime, in Ohio its a misdemeanor of 100 dollar fine for possesion of 112 grams or less. I don't find that to be extremly harsh . I don't think they haul you away in handcuffs for it either. Pretty sure its just a ticket and on your way type situation.(do you find this harsh?)

Do we really want to start scrambling up this slope? Can you abide a year in jail for someone holding 112.25 grams? Are the benefits of incarcerating someone for the substances they imbibe worth the costs of turning a taxpayer into a felon? Are the deaths and health issues caused by the poor quality control the current regimen foists a net benefit for society? Do we really want to line the pockets of distant drug lords and create lucrative markets our enemies can exploit to fund their attacks against our citizens? If a hundred bucks is the issue, I say suck it up. Alas I think the equation is a lot more vast and complex.

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When you refer to "all" the laws being enforced i asume your speaking of some law written two hundred years ago type thing. Like beating your wife on the county court steps. Then the answer is of course not.

If your refering to the laws that everyone is aware of and knows the penaltys for and knows are illegal, like the drug laws. yea i want them enforced.

And who makes the call about what ?everyone is aware? of? Ever taken a look at the Annotated Code of the United States? Fills a shelf or two in most libraries. Add on the tomes generated by sundry states and municipalities and the reading list gets kinda long. Bottom line is that I don?t think a law?s efficacy can be measured by who understands what about it. I think analyzing benefits and costs associated with a given law is a much better measure and by that yardstick I?d argue American drug laws are an utter abomination.

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Dosen't my desire to have our drug laws enforced make me as much a liberatarian as your desire to have them challenged and broken?

If not then please give me your definition of a libertarian.

Uhm, if the question is whether your willingness to arrest and incarcerate citizens to an unproductive end makes you more libertarian than me, my reply would be both obvious and ardent. If there is some nuance I?m missing, please fill me in.

As for defining the term, I suppose I should confess I?m not really a libertarian so I?m probably the wrong guy to ask. Philosophically the rational anarchy espoused in Robert Heinlein?s The Moon is a Harsh Mistress most closely parallels my thoughts, while neo-antifederalist best describes my political views in an American context. And if you?d like me to explain at length what either of those terms means, tell me what the gig pays and I?ll tell you if I?ll take it.